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Can a tenant countersuit a lawyer who takes them to housing court if the have 311 before petition?

Brooklyn, NY |

If the tenant has 311 complaints dated right before the landlords petition can you countersuit for harassment and retaliation?

TYPO…..countersuit a landlord NOT lawyer

Attorney Answers 2


  1. Your question is unclear. Tenants don't countersue lawyers that file petitions against them on behalf of landlords, but they can make counterclaims against the landlord once a petition has been filed. In housing court, one of the most common counterclaims that a tenant can assert is for Warranty of Habitability or bad conditions in their apartment. If you've called 311 and HPD cites the landlord for violations based on the inspection they've done, it makes your counterclaim stronger.

    Additionally, if you believe the landlord has only sued you because of good faith complaints you made to HPD (311) you may have a retaliatory eviction counterclaim as well. The landlord may not try to evict you simply because you've asserted your rights under NY state law. You should contact a tenant attorney to help you figure out what, if any counterclaims are appropriate in your case.

    Good luck!

    The responses, information and materials on this Web site are provided for general informational purposes only and are not intended to be legal advice. We attempt to provide quality information, but the law changes frequently and varies from jurisdiction to jurisdiction. The information provided is general in nature, and may not apply to a specific factual or legal circumstance. An attorney and client relationship should not be implied. Nothing on this Web site or in my response is intended to substitute for the advice of an attorney, therefore if you require legal advice please consult with a competent attorney licensed to practice in your jurisdiction.


  2. Dear Brooklyn Tenant:

    A tenant in NYC Housing Court, may when answering a landlord's nonpayment or holdover petition, raise affirmative defense, jurisdictional objections, and counterclaims (as long as connected to the underlying issues in the lawsuit.)

    http://www.nycourts.gov/courts/nyc/housing/pdfs/tenantsguide.pdf

    http://www.courts.state.ny.us/COURTS/nyc/housing/answering.shtml

    A tenant who has a history of complaints (and hopefully violations reported from those complaints) has evidence of the defective conditions, duration, notice to the landlord, and so, may use the 311 complaints and code enforcement violations to support a defense as well as a counterclaim based upon a breach of the statutory Warranty of Habitability.

    New York law, does not recognize a cause of action for harassment, and so, a counterclaim raising that matter may be dismissed by the judge if the landlord makes a motion to dismiss.

    Retaliation as a counterclaim and as a defense exists when the tenant claims that but for the fact that the tenant made good faith complaints to a government agency about housing conditions within six months of being sued, the landlord would not have brought the lawsuit. Retaliation as a defense and a counterclaim is generally not appropriate when the tenant is sued for not paying rent, as a landlord does possess a legal right to rent, even if the tenant has defenses to the claim.

    Retaliatory eviction is an affirmative defense and may be asserted by the tenant at the time of answering the petition.

    http://codes.lp.findlaw.com/nycode/RPP/7/223-b

    If a particular defense or counterclaim is not raised by the tenant in an initial written answer, the court may allow for an amendment of the answer in certain circumstances if presented with a motion to amend the answer along with a copy of the original pleadings and proposed amended answer anc counterclaim attached as exhibits.

    The answer provided to you is in the nature of general information. The general proposition being that you should try to avoid a bad outcome if you can.

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