HR Cortlandt LLC v Kohut

Justice Court of the Town of Cortlandt, Westchester County

Decided on April 13, 2026

Docket No. LR01572

Livia Rodriguez, J.

The Petitioner filed a Summary Proceeding for a holdover tenancy seeking an order awarding possession of the apartment located on Oregon Road, Cortlandt, New York (hereinafter "subject premises") back to petitioner and a warrant of eviction to remove respondents from the subject premises. This petition was filed with the Court on January 1, 2026, and was returnable on January 12, 2026.

PROCEDURAL HISTORY

On January 12, 2026, petitioner's attorney and respondent Carla Kohut appeared without an attorney. Respondent informed the Court that she was represented by an attorney from the Hudson Valley Justice Center (hereinafter "HVJC"), however petitioner's counsel told the Court that he received an email from respondent's attorney stating she no longer represented her. The Court granted an adjournment for respondents to have an attorney appear on February 2, 2026. Later that same day, the Court received, via facsimile, a Notice of Appearance from Ms. Christine Moccia of the HVJC.

On February 2, 2026, petitioner and respondent Kohut appeared but respondent's attorney did not. The Court clerks called Ms. Moccia, who apologized and said she thought the appearance was for February 9, 2026. The Court adjourned the matter for one week for respondent's attorney to appear because petitioner indicated a willingness to resolve the matter with a potential settlement.

On February 3, 2026, the Court received, via overnight mail, respondent's motion to [*2]dismiss the holdover petition pursuant to CPLR 3211 (2)(7).FN1

Attorneys for both sides appeared on February 9, 2026, and advised the Court that a settlement could not be reached. Respondent stated she wanted the Court to entertain the motion to dismiss the petition that was filed with the Court. The Court set a motion schedule as follows: Petitioner's opposition was due February 27, 2026; Respondent's reply was due March 6, 2026; and the Court's Decision was due April 13, 2026.

The gravamen of respondent's motion to dismiss the petition is: 1) petitioner's corporate status is "past due" and thus has no standing to bring the instant petition, 2) petitioner's predicate notice was invalid, 3) petitioner failed to state a cause of action which relief may be granted and 4) the holdover proceeding is in retaliation for the complaints respondent filed with various different quasi-governmental and government agencies.

Petitioner opposes the motion to dismiss on the grounds that: 1) petitioner has stated a cognizable cause of action, 2) petitioner's corporate statement status is irrelevant to these proceedings, 3) that the predicate notice filed was sufficient, 4) detailing a cause for eviction was unnecessary in the instant proceeding, and 5) petitioner is the actual victim to retaliation by the respondent.

For the reasons detailed herein, the respondents' motion is granted.

ANALYSIS

Initially, this Court notes that affirmation of respondent's counsel filed in support of her motion seeking a dismissal of the petition fails to comport with the recently amended statutory language of CPLR 2106. Additionally, the affirmation in opposition to respondent's motion filed by petitioner's counsel also fails to comport with the recently amended statutory language of CPLR 2106.

CPLR 2106, as amended as of January 1, 2024, provides as follows:

The statement of any person wherever made, subscribed and affirmed by that person to be true under the penalties of perjury, may be used in an action in New York in lieu of and with the same force and effect as an affidavit. Such affirmation shall be in substantially the following form:

I affirm this ___ day of ______, ____, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law.

The affirmation submitted by Ms. Moccia, Esq., respondent's counsel and Mr. Matthew Aqeel, Esq., petitioner's counsel, are only made "under the penalties of perjury." Such affirmations were sufficient under the old CPLR 2106, but effective January 1, 2024, they are no longer legally sufficient to comport with this amended rule. The Advisory Committee Notes to CPLR 2106 state, "while attorneys always have a professional duty to state the truth in papers, the affirmation under the proposed rule gives attorneys adequate warning of the possibility of prosecution for perjury for a false statement." (See [*3]Zhou v Cent. Radiology, PC, 84 Misc 3d 410, 419 [Sup Ct, Queens County 2024].)

Since the amended rule includes the word "shall" within its directive, the language set forth thereafter is mandatory and not merely a suggestion. (See Diego Beekman Mut. Hous. Assn. Hous. Dev. Fund Corp. v Hammond, 81 Misc 3d 1244(A) [Civ Ct, Bronx County 2024].) The failure to include the required language as set forth in CPLR 2106 cannot be said to be harmless and renders the affirmation inadmissible and of no probative value (See Zhou at 419; R.F. v L.K., 82 Misc 3d 1221(A) [Sup Ct, Westchester County 2024]).

In Kallo v Kane St. Synagogue, 241AD3d 522 [2nd Dept 2025], the Second Department found that a defective affirmation that was missing the required language of CPLR 2106 may be corrected with the submission of a reply affirmation containing the requisite language. Here, the reply papers submitted by respondents' counsel also fail to comport with CPLR 2106. As such, the subject affirmation of petitioner's and respondents' attorneys fails to acknowledge the importance and seriousness of the statements made in the affirmation and the consequences of making false statements, as required by the statute (see Zhou at 419; see generally Matter of Grandsard v Hutchinson, 227 AD3d 491 [1st Dept 2024]; Great Lakes Ins. SE v American S.S. Owners Mut. Protection & Indem. Assn. Inc., 228 AD3d 429 [1st Dept 2024]; Fifth Partners LLC v Foley, 227 AD3d 543 [1st Dept 2024]). Accordingly, any facts asserted by petitioner's and respondents' attorneys in the subject affirmations are inadmissible and lack probative value.

Nevertheless, the Court may properly consider the legal arguments advanced in both affirmations as well as the facts set forth in the properly executed affirmation of respondent/tenant Carla Kohut (hereinafter "Kohut affirmation") and the properly executed affidavit of petitioner/landlord Reza Ardebili (hereinafter "Ardebili affidavit").

Coincidently, petitioner's counsel posits that respondent's motion is procedurally defective since the Kohut affirmation is mislabeled and is an affidavit that is not notarized. The Court disagrees. Under the plain reading of the recently amended CPLR 2106, an affirmation with the mandated language may be submitted "in lieu of and with the same force and effect as an affidavit." Petitioners' argument is based on the outdated CPLR 2106 not the newly amended CPLR 2106. Additionally, the cases he cites in support of his position were decided prior to the amendment to CPLR 2106. Consequently, petitioner's argument that respondent's motion to dismiss must be denied in its entirety due to a procedurally defective "affidavit" is meritless.

The Court will turn to the respondents' arguments that the instant summary proceeding is in retaliation to complaints she made to several quasi-governmental and government agencies regarding various conditions in her apartment.

Respondents argue that they made several complaints in 2025 regarding conditions in her apartment. Specifically, respondent Kohut stated that on or about March 19, 2025, she called Con Edison complaining that the electricity in her apartment was shut off. The Kohut affirmation states that approximately three years prior, she called Con Edison and inquired why her electricity bill was so high when only two people lived in her apartment. The Kohut affirmation details that Con Edison determined that the meter from her apartment also provided electricity to another apartment in the subject premises, and Con Edison called this a "shared meter" situation (see Kohut Affirmation, Exhibit "D"). Respondent detailed that she no longer had a separate electricity bill and that Con Edison sent the bill directly to the petitioner. She further contends that petitioner failed to make payments to Con Edison resulting in her decision to make many payments to Con Edison to keep the electricity on in her apartment. She stated that eventually, she could not afford to keep paying for her electricity and the electricity of other tenants. [*4]Consequently, she brought an Order to Show Cause before this Court on September 12, 2025, seeking an order directing the petitioner to pay the outstanding Con Edison bill. After a contentious hearing where both respondent and petitioner testified, this Court granted the respondent's request and directed the petitioner/landlord to pay the outstanding bill within seven days of the order (see Kohut Affirmation, Exhibit "G").

Moreover, Respondent Kohul stated that she complained to CVR New York (the administrator of her section 8 voucher program) in March 2025 regarding the lack of electricity and heat in her apartment, she notified them of the sewage leakage problem, and she told them that she did not sign the self-certification letter petitioner submitted to CVR. She also stated that she complained to the Town of Cortlandt that sewage was leaking near her apartment on or about July 22, 2025. Respondents aver that since petitioner served her with a Termination Notice, dated August 26, 2025, and in January 2026 with the petition for the instant summary proceeding, this is nothing more than a retaliatory eviction.

Petitioner responds that since a prior holdover summary proceeding commenced prior to the complaints in respondents' motion, this is not a retaliatory eviction.FN2 Additionally, petitioner argues that after the previous summary proceeding was withdrawn, respondents made complaints to Con Edison, CVR and the Town of Cortlandt that were made in "bad faith". Petitioner posits that the complaints were in retaliation for the previous summary proceeding that was filed and withdrawn (See Ardebili affidavit).

A retaliatory eviction is a proper defense in a residential holdover proceeding under the Real Property Law (hereinafter "RPL"). RPL §233-B defines a retaliatory eviction and details what a landlord is prohibited from doing. RPL §223-B states, in pertinent part, as follows:

No landlord of premises or units to which this section is applicable shall serve a notice to quit upon any tenant or commence any action to recover real property or summary proceeding to recover possession of real property in retaliation for:

(a) A good faith complaint, by or in behalf of the tenant, to the landlord, the landlord's agent or a governmental authority of the landlord's alleged violation of any health or safety law, regulation, code, or ordinance, the warranty of habitability under § 235-B (Warranty of habitability), the duty to repair under sections seventy-eight, seventy-nine, and eighty of the multiple dwelling law or Multiple Residence Law § 174 (Repairs and cleanliness), or any law or regulation which has as its objective the regulation of premises used for dwelling purposes or which pertains to the offense of rent gouging in the third, second or first degree; or

(b) Actions taken in good faith, by or in behalf of the tenant, to secure or enforce any rights under the lease or rental agreement, the warranty of habitability under § 235-B (Warranty of habitability), the duty to repair under sections seventy-eight, seventy-nine, and eighty of the multiple dwelling law or Multiple Residence Law § 174 (Repairs and cleanliness), or under any other law of the state of New York, or of its governmental subdivisions, or of the United States which has as its objective the regulation of premises used for dwelling purposes .

Significantly, RPL §233-B (5) sets a rebuttable presumption that a landlord who initiates a summary proceeding within one year of a tenant exercising their rights to file a complaint against the landlord for violations of the implied warranty of habitability, for complaints alleging violation of any health or safety law, regulation, code, or ordinance, or a duty to repair, the landlord is acting in a retaliatory manner. (see Tapia v. Roman, 2022 NYLJ LEXIS 469 [NY Civ. Ct. Kings Cnty, April 26, 2022]).

Applying this statutory framework to the case at bar, this Court finds that the instant summary proceeding filed by the petitioner is a retaliatory eviction. The respondent made several valid complaints to Con Edison, CVR and the Town of Cortlandt regarding lack of heat and electricity and a leaking sewage into her apartment. These complaints were made from March 2025 to July 2025. The fact that petitioner served respondent with a 90-day notice of termination in August 2025 and followed that with the filing of the instant summary proceeding on or about January 2, 2026, is a classic case of retaliation. Since the instant summary proceeding was in initiated less than a year after the complaints, the presumption detailed in RPL §233-B (5) applies. Petitioners attempt to rebut this presumption by arguing that the summary proceeding filed previously in May 2024 negates the finding of retaliation. The Court disagrees.

Respondent Kohut filed a reply affirmation with exhibits that are photographs depicting texts between her and the petitioner regarding the sewage leaking into her apartment as far back as February 2021. Additionally, respondent Kohut's reply affirmation also includes photographs of texts, dated April 2022, she sent to the petitioner regarding numerous repairs that her apartment required. Petitioner's self-serving assertions that he is the actual victim of retaliation by the respondent is unpersuasive and not supported by the record before this Court. Based upon all the foregoing, the Court finds in favor of the Respondents.

All other arguments raised on these motions and evidence submitted by the parties in connection thereto have been considered by this court notwithstanding the specific absence of reference thereto.

CONCLUSION

Accordingly, it is,

ORDERED, that the respondents' motion seeking to dismiss the holdover summary proceeding is hereby GRANTED, and it is further

ORDERED, that petitioner's petition seeking a final judgment awarding possession of the premises to the petitioner/landlord and issuing a warrant of eviction is hereby dismissed with prejudice, and the Clerk shall enter this Order and mark this matter off the Court's calendar.

DATED: April 13, 2026

Town of Cortlandt

HON. LIVIA RODRIGUEZ

Town of Cortlandt Justice