Defending Against Tenant’s Warranty of

Habitability Claim and Other Defenses

Presented by

Adam Leitman Bailey, Esq.

These are the defenses (partial and total) to a tenant's claim for an abatement: 1. Failure to provide access 2. Election of remedies (a tenant cannot get a rent abatement for matters for which the tenant has received a rent reduction order from the DHCR) 3. Failure to give the landlord notice of the failed condition and reasonable opportunity to correct it. 4. Prompt correction of the condition by the landlord 5. Failure of the condition to affect life, health, and safety (failures of luxury conditions may give rise to a plenary cause of action for breach of lease, but not to a rent abatement.) 6. Lack of standing of the tenant (Rent abatements only lie for tenants who are actually in possession of the premises. A tenant out of occupancy may not assert a vicarious claim on behalf of a subtenant.) 7. Statute of limitations: A rent abatement as a counterclaim can only be asserted for six years prior to its assertion. 8. No abatement lies for damage to or destruction of personal property. 9. No abatement lies for conditions caused by the tenant himself. 10. No abatement lies outside of the residential context. 11. Cosmetics: No abatement lies for purely cosmetic items such as discoloured bathroom tile. 12. Defenses that do NOT lie to claims of abatement: (A) Special landlords: Neither the City, nor Receivers, nor Coops, nor 7A Administrators are exempt from abatements. All of these issues have been litigated. Note, however, that if an abatement is asserted as a counterclaim, as to Receivers and 7A Administrators, they can only be set offs of a rent claim. They cannot exceed the amount of rent the tenant is sued for. (B) Waiver. The right to abatement in residential context is unwaivable. (C) Fact that condition is not a violation. In order to qualify for an abatement, a defect which threatens life health or safety need not be a violation, much less a reported violation.

1. Failure to provide access Brookwood Mgt. Co. v. Melius, 35 HCR 142A, 14 Misc3d 137(A), –NYS2d–, NYLJ 2/26/07, 47:5, HCR Serial #00016371 (AT 9 & 10 2007)

DECISION Appeal from a final judgment of the District Court of Suffolk County, Fifth District

(James P. Flanagan, J.), entered July 28, 2005. The final judgment, after a nonjury trial, awarded landlord possession and the principal sum of $2,280.78 in a nonpayment summary proceeding.

Final judgment affirmed without costs. In this nonpayment proceeding, tenant claimed that he withheld rent because landlord

breached the warranty of habitability by failing to make certain repairs to his apartment. However, the proof at trial showed that tenant denied access to landlord’s repairmen to remedy the conditions complained of, and that, once access was granted, the repairmen corrected the conditions. Under the circumstances, the court properly determined that tenant was not entitled to an abatement (see, Callender v. Titus, 32 HCR 373C, 4 Misc3d 126[A], 791 NYS2d 868, 2004 N.Y. Slip Op 50608[U] [App. Term 2nd & 11th Jud. Dists.]; see also, West 122nd St. Assoc. v. Gibson, 32 HCR 786A, 5 Misc3d 137[A], 799 NYS2d 165, 2004 N.Y. Slip Op 51578[U] [App. Term 1st Dept.]).

RUDOLPH, P.J., McCABE and TANENBAUM, JJ., concur.

2. Election of remedies (a tenant cannot get a rent abatement for matters for which the tenant has received a rent reduction order from the DHCR) Rush Realty Assoc., LLC v. Weston, 31 HCR 666A, 1 Misc3d 130(A), 781 NYS2d 625, HCR Serial #00014028 (AT 2 & 11 2003)

DECISION Appeal by tenant from a final judgment of the Civil Court, Kings County (G.

Lebovits, J.), entered on April 15, 2002, awarding landlord possession and the sum of $2,528.62.

Final judgment unanimously reversed without costs and matter remanded to the court below for a new trial.

In this nonpayment proceeding, after trial, the court below found that the tenant’s claims for breach of warranty of habitability, relating to heat, hot water, elevator service and noise, were barred by the doctrine of collateral estoppel since she asserted the same claims in several proceedings before the Division of Housing and Community Renewal (“DHCR”) and was awarded a 10% reduction in rent by DHCR in connection with one of her claims concerning the lack of hot water. While a determination by DHCR after a hearing will have the effect of establishing, for purposes of collateral estoppel, the conditions found to exist warranting a reduction of rent (Lorcorp, Inc. v. Burke, 185 Misc2d 720, 722), a tenant is not barred from asserting a claim for breach of warranty of habitability upon the same conditions (Real Property Law §235-b[3][c]; see, Lorcorp, Inc., 185 Misc2d at 723). On the record before us, we cannot determine that DHCR made findings regarding the conditions of the premises relating to the claims asserted herein by tenant for breach of warranty of habitability. Moreover, tenant would not be barred by the doctrine of collateral estoppel from asserting a claim for breach of warranty of habitability even where DHCR awarded tenant a rent reduction which relates to one or more matters for which relief is sought herein (Real Property Law §235-b[3][c]). However, the amount awarded in an action for breach of warranty of habitability must be reduced by the amount of any rent reduction ordered by DHCR (Real Property Law §235-b[3][c]). Thus, the statute does not prohibit tenant from obtaining two remedies. It merely limits a tenant’s award for an abatement when there was also a rent reduction ordered by DHCR which relate to the matters asserted in the tenant’s claim for breach of warranty of habitability (id.)

3. Failure to give the landlord notice of the failed condition and reasonable opportunity to correct it. Moskowitz v. Jorden, 34 HCR 266A, 27 AD3d 305, 812 NYS2d 48, HCR Serial #00015683 (AD1 2006)

DECISION Order, Surrogate’s Court, New York County (Renee Roth, S.), entered May 27, 2005,

which, to the extent appealed from, denied petitioners’ motion for summary judgment, unanimously modified, on the law, to grant the motion so as to dismiss the affirmative defense of the warranty of habitability and as to liability with respect to the claim for rent arrears and to award such arrears in the amount claimed owing as of December 18, 2003, and otherwise affirmed, without costs, and the matter remanded for an assessment of the amount of rent arrears owing subsequent to December 18, 2003.

In this proceeding to collect rent arrears from the estate of a loft tenant, the Surrogate correctly determined that the estate was entitled to compensation for the sale of the tenant’s improvements under Multiple Dwelling Law §286(6). The court was not required to accord deference to a contrary holding of the Loft Board, since the administrative determination turned solely on statutory interpretation, not specialized knowledge and understanding of operational practices or an evaluation of factual data and inferences to be drawn therefrom (see, KSLM-Columbus Apts., Inc. v. New York State Div. of Hous. & Community Renewal, 5 NY3d 303, 312 [2005]). The right of sale does not depend on the executrix’s use of the apartment as a primary residence. The purpose of the statute is to prevent owners from obtaining a monetary windfall if improvements reverted to the owners without compensation to the tenants who paid for them (see, 577 Broadway Real Estate Partners v. Giacinto, 182 AD2d 374 [1992]), a policy equally applicable when the tenant’s estate seeks compensation. Possessory rights are grounded on different considerations (cf., DeKovessey v. Coronet Props. Co., 69 NY2d 448 [1987]; Matter of Rubinstein v. 160 W. End Owners Corp., 74 NY2d 443 [1989]).

However, the court should have dismissed the estate’s warranty of habitability defense in the absence of notice of the defective conditions claimed. While a landlord may not require prior written notice of a defective condition before a tenant may invoke the warranty (see, Vanderhoff v. Casler, 91 AD2d 49, 51 [1983]), this does not mean that notice is not required (see, 330 E. 46th St. Assocs., LLC v. Greer, 5 Misc3d 133(A) [2004]; Elijah Jermaine, LLC v. Boyd, 5 Misc3d 131(A) [2004]). The owners’ knowledge of litigation involving other tenants and other claimed conditions did not provide notice of the particular conditions claimed by the executrix.

The court should have resolved the rent arrears claim, which we do upon our own search of the record, in the owners’ favor. The claim for arrears owed as of December 18, 2003 was not denied, and the owners clearly explained and documented how the monthly rent had been determined. Possible discrepancies as to the amount owed do not present issues of fact precluding summary judgment (CPLR 3212[c]; see, Dittman v. Martin B. Andrews, Inc., 37 AD2d 914 [1971]; Lomax v. New Broadcasting Co., Inc., 18 AD2d 229, 230 [1963]; see also, Republic of Haiti v. Duvalier, 211 AD2d 379, 387 [1995]). Summary judgment was properly denied with respect to the unpleaded, unsubstantiated and unexplained compliance pass along claim.

Contrary to the court’s understanding, the owners’ entitlement to attorneys’ fees was predicated on the projection of the original lease terms onto the statutory tenancy (see,

Matter of Duell v. Condon, 84 NY2d 773, 779 [1995]), but a determination of “prevailing party” status would be premature in light of the pending assessment of rent arrears and valuation of the apartment’s improvements as a possible offset (see, Solow v. Wellner, 205 AD2d 339, 340 [1994], aff’d, 86 NY2d 582 [1995]; 54 Greene St. Realty Corp. v. Shook, 8 AD3d 168 [2004], lv denied, 4 NY3d 704 [2005]).

This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.

4. Prompt correction of the condition by the landlord 1050 Tenants Corp. v. Lapidus, 22 HCR 485A, NYLJ 8/12/94, 22:3, HCR Serial #00001389 (AT1)

DECISION Final judgment entered April 16, 1993 (Shafer, H.J.) unanimously affirmed, with $25 costs, for the reasons stated in the decision of Shafer, H.J. at the Civil Court. The record reveals that the special assessment imposed by the cooperative’s board of directors was both authorized by the bylaws and duly established in accordance with procedures set forth in the bylaws (cf., Bailey v. 800 Grand Concourse, Inc., 199 AD2d 1 (where the cooperative’s bylaws specifically limited the Board’s authority to impose a sublet fee). As to the trial court’s rejection of tenants’ breach of the warranty of habitability defenses, the record amply supports the court’s finding that the conditions complained of were promptly attended to by landlord. Since, on a bench trial, the decision of the trial court should not be disturbed on appeal unless it is obvious that the court’s conclusions could not be reached under any fair interpretation of the evidence, especially when the findings rest in large part upon considerations relating to the credibility of witnesses (Nightingale Restaurant Corp. v. Shak Food Corp., 155 AD2d 297), we affirm. This constitutes the decision and order of the court.

5. Failure of the condition to affect life, health, and safety (failures of luxury conditions may give rise to a plenary cause of action for breach of lease, but not to a rent abatement.) Solow v. Wellner, 23 HCR 647A, 86 NY2d 582, 658 NE2d 1005, 635 NYS2d 132, HCR Serial #00007885, TLC Abatements 8, TLC Serial #0087 (Court of Appeals 1995) Commentary at: 23 HCRComm 68

COMMENTARY Like many landmarks in the law, Solow v. Wellner is destined to define more discussions than it settles. Yet it does settle certain matters, even if the very manner in which it does so opens up the other issues. Life, Health, and Safety What then is this warranty of habitability? Solow v. Wellner makes it clear that it is not the one-size-fits-all answer to all tenants’ complaints about the conditions in the demised premises. Rather, the warranty is a limited standard of the minimum that a residential apartment must provide. Into this minimum standard fall two categories that the landlord must meet. The apartment must be free from conditions that threaten life, health, and safety. Park West Management Corp. v. Mitchell[1]makes it clear that this definition is not co-extensive with building code violations. There are some violations that are purely technical in nature and do not actually impair life, health, and safety. An example of one would be a missing elevator inspection certificate. These violations, while possibly leading to civil or criminal penalties, will not lead to an abatement. Conversely, where an apartment was rented with various windows that in the course of time are blocked off by scaffolding, the landlord has not violated the law, but has breached the warranty of habitability[2]. The Uses Reasonably Intended by the Parties But there is that other branch of the statute[3], whether the premises are fit for the uses reasonably intended by the parties. In Solow v. Wellner, the trial court interpreted this clause to read into the warranty of habitability that “uses reasonably intended” meant “uses reasonably expected”[4]. Had the statute said “expected” rather than intended, the [1] 47 NY2d 316, 418 NYS2d 310, TLC Abatements 1, TLC Serial Number 0001 (Court of Appeals, 1979) [2] Pickman Realty Corp. v. Hess, 21 HCR 328B, NYLJ 6/22/93, 27:4 (AT 2 & 11 Aronin; Chetta, Patterson) HCR Serial #00000640 [3] RPL §235-b [4]

The location of the premises, the amenities that are touted to go with the apartment, and representations made by the landlord consistent with the lease are all factors that enter into a tenants' reasonable expectations. Forest Hills #1 V. Schimmel, 110 Misc.2d 429, 110 Misc.2d 429, 440 NYS2d 471 (Civ. Queens 1981). In applying this branch of the warranty to this case, we start with the obvious expectations of this uniquely designed all glass enclosed building on Manhattans fashionable upper East side. Add to this the comparatively high rents exacted for these apartments and one would have to assume that the expectations of the tenants encompassed more than the minimal amenities. While the warranty certainly entitled them to freedom from conditions threatening their life, health and safety their higher rents justified increased expectations of a well run impeccably clean building of consistent and reliable services. These expectations were reasonably enhanced by the brochure they received which was also incorporated into the lease, with its promises of security, air conditioning in the public areas and panoramic views. The promises and expectations fell far short of the reality. The warranty in the public areas was breached.

Solow v. Wellner, NYLJ 4/4/91, 25:2, 19 HCR 201A at p.203, HCR Serial #00040005 (Civ NY York)

trial court’s analysis would have been overwhelmingly compelling. Here, however, the Court of Appeals, looks at the statute and rejects “expected” as an explanation of “intended” and goes on to the inevitable question, “Intended by whom?”. Here, all the evidence that the trial court accepted of advertising brochures for the premises showing the luxury accommodations the tenants expected and therefore could reasonably have intended was irrelevant. Rather apparently, the court sees “fit for the uses reasonably intended” to be what reasonably person would reasonably intend for the single conceivable “use” of human habitation. In essence, the court has set up almost an equivalence amongst the three standards set forth in the statute[5], that the premises (1) “are fit for human habitation (2) and for the uses reasonably intended by the parties and (3) that the occupants of such premises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety.” In so doing, it seems clear that the Court has made no attempt to obey the rule of statutory construction that gives distinct meaning to all the words of a statute. In fairness, in analyzing this statute, it would seem that any apartment that fails clause #1 (fitness) will automatically fail clause #3 (health, etc.)[6]. Therefore, we can say that the legislature could have left out clause #1 without diminishing the statute. But the point of this decision is clause #2, “for the uses reasonably intended”. And where the court limits the meaning of this case to the single use of human habitation[7], we are left with the problem that the court has not construed “uses”, but rather “use” and in a manner that does little more than echo clause #1. All this is to say, that from a pure legal and linguistic analysis of the statute, the court is not on absolutely firm footing. One must also question the court’s bolstering of its conclusion by pointing to the inability of the parties to waive the statute in a lease. While there can be little doubt that the intent of the legislature in outlawing such a waiver was to protect tenants, the court

[5] RPL § 235-b. Warranty of habitability 1. In every written or oral lease or rental agreement for residential premises the landlord or lessor shall be deemed to covenant and warrant that the premises so leased or rented and all areas used in connection therewith in common with other tenants or residents are fit for human habitation and for the uses reasonably intended by the parties and that the occupants of such premises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety. When any such condition has been caused by the misconduct of the tenant or lessee or persons under his direction or control, it shall not constitute a breach of such covenants and warranties. 2. Any agreement by a lessee or tenant of a dwelling waiving or modifying his rights as set forth in this section shall be void as contrary to public policy. 3. In determining the amount of damages sustained by a tenant as a result of a breach of the warranty set forth in the section, the court;(a) need not require any expert testimony; and (b) shall, to the extent the warranty is breached or cannot be cured by reason of a strike or other labor dispute which is not caused primarily by the individual landlord or lessor and such damages are attributable to such strike, exclude recovery to such extent, except to the extent of the net savings, if any, to the landlord or lessor by reason of such strike or labor dispute allocable to the tenant's premises, provided, however, that the landlord or lesser has made a good faith attempt, where practicable, to cure the breach. [6] However, as we see here, the court has a failure of clause #1 actually overlapping clause #2. The net effect is that clause #2 with its meaning of useless from a practical standpoint and clause #3 with its meaning of useless from a safety standpoint, make clause #1 nothing but a conglomeration of the conditions that make up clauses #2 and #3. [7] Giving as an example a nonfunctioning elevator, which while not affecting health, diminishes the usefulness of upper story apartments in a high rise.

says that the parties cannot extend the warranty by lease because the waiver of the statute was intended to protect landlords. This is just plain silly. Indeed the parties can extend the warranty by contract and they can provide for appropriate contractual remedies, including in the form of rent abatements in summary proceedings or whatever else the parties wish to contemplate. The decision would have had substantially greater strength if that piece of the analysis had been left out. The Practical Effect However, it is not unreasonable to determine that the Legislature sought only to create minimum standards intended primarily to protect lower and middle income people. Presumably those who contract for luxury amenities can protect themselves adequately to ensure that they actually receive those amenities. This is the precise practical effect of this decision. For the wealthy contracting for luxury amenities, the teaching is caveat emptor! When the court writes,

Moreover, as we noted in Park West Management, §235-b was intended to provide an objective, uniform standard for essential functions, while the trial court's standard creates an individualized subjective standard dependent on the specific terms of each lease.

the only conclusion that can be drawn is that the Court is expecting leases to be negotiated. That is to say that the current reality in the vast bulk of cases, that the landlord drafts the lease and hands it to the tenant on a take it or leave it basis is of no legal significance. The tenant is still responsible to negotiate his own terms and specifically to see to it that any special amenities are specifically and specially incorporated into the lease, together with an acceptable enforcement mechanism. One wonders how often even wealthy tenants will follow this procedure and in so doing will retain competent counsel with the peculiar expertise in this area of law necessary for adequate protection. Indeed, consider that as leases exceed $2,000 in rent, the tenants will even lack the aid of the DHCR in enforcing any of these amenities. In short, the tenant is on his own.

DECISION Appellants are a group of approximately 65 current and former tenants of an apartment building located at 265 East 66th Street in Manhattan. Following a pervasive rent strike, the landlord commenced summary nonpayment proceedings to recover unpaid rent for the period October 1987 through May 1988. In a joint trial before the Civil Court the tenants conceded the landlord’s prima facie case of rent nonpayment but asserted as an affirmative defense and counterclaim the landlord’s breach of the implied warranty of habitability (RPL §235-b). The tenants also counterclaimed inter alia for an award of attorneys’ fees. The trial court interpreted Real Property Law §235-b as requiring that “the premises ... be maintained in accordance with the reasonable expectations of the tenant” (150 Misc2d 642, 650). Accordingly, because these tenants resided in a uniquely designed building on Manhattan’s “fashionable” upper east side and paid comparatively high rents, the court concluded that the reasonable expectations against which the landlord’s performance would be measured “encompassed more than the minimal amenities” (id., at 650-51). Applying this standard to the evidence before it, the court held that the landlord had breached the implied warranty of habitability and awarded the tenants a ten percent abatement for the common area problems and additional abatements of from one to

eleven percent for individual apartment complaints for the portion of each tenancy that fell within the six year statute of limitations period. Because of the various rent abatements awarded,1 the landlord received significantly reduced judgments on his unpaid rent claims and, in some cases, judgment was entered in the tenant’s favor. Additionally, the trial court held that the tenants as a group were entitled to attorneys’ fees as the prevailing parties and that pre-judgment interest should be denied the landlord on an estoppel theory but awarded to those tenants who received a judgment in their favor. On appeal to the Appellate Term the landlord challenged the propriety of the warranty of habitability abatements. Following its legal and factual review of Civil Court’s disposition of the case (see, CPLR 5501[d]), that court rejected the trial court’s use of a heightened warranty standard and found that under the proper standard only one of the building-wide conditions – elevator service problems – warranted an abatement (see, 154 Misc2d 737). Appellate Term thus reduced the common area abatement to five percent and limited it to the period May 1987 through May 1988. As to the conditions of the individual apartments, Appellate Term concluded that with respect to 16 of the apartments the evidence did not support an additional abatement and that with respect to the remaining apartments, a remand for recalculation under the appropriate standard and for specific findings as to the nature and duration of the defects was necessary. In light of its remand order, Appellate Term declined to make a final determination on the issues of attorneys’ fees and pre-judgment interest (id., at 744). The Appellate Division granted the tenants’ motions for leave to appeal, and upon review, modified Appellate Term’s remand direction only to the extent of deleting the requirement that Civil Court make specific findings as to the amount of offset attributable to each apartment-specific defect, and as modified, otherwise affirmed (205 AD2d 339). That same panel of the Appellate Division subsequently granted the tenants’ motions to appeal to this Court, certifying the following question for our review: “Was the order of this Court, which modified the order of the Supreme Court properly made?” We now answer that question in the affirmative. Pursuant to Real Property Law §235-b, every residential lease contains an implied warranty of habitability which is limited by its terms to three covenants: (1) that the premises are “fit for human habitation,” (2) that the premises are fit for “the uses reasonably intended by the parties,” and (3) that the occupants will not be subjected to conditions that are “dangerous, hazardous or detrimental to their life, health or safety” (Real Property Law §235-b)2 In Park West Management Corp. v. Mitchell (47 NY2d 316, 327, cert denied, 444 US 992), this Court described the statutory warranty as creating an

1 In addition to the breach of warranty habitability abatements, certain tenants receive an additional rent

offset representing rent overcharge damages. 2 Real Property Law §235-b provides in pertinent part: 1. In every written or oral lease or rental agreement for residential premises the landlord or lessor shall be

deemed to covenant and warrant that the premises so leased or rented and all areas used in connection therewith in common with other tenants or residents are fit for human habitation and for the uses reasonably intended by the parties and that the occupants of such premises shall not be subjected to any conditions, which would be dangerous, hazardous or detrimental to their life, health or safety. When any such condition has been caused by the misconduct of the tenant or lessee or persons under his direction or control, it shall not constitute a breach of such covenants and warranties.

2. Any agreement by a lessee or tenant of a dwelling waiving or modifying his rights as set forth in this section shall be void as contrary to public policy

implied promise by the landlord that the demised premises are fit for human occupancy. We specifically rejected the contention that the warranty was intended to make the landlord “a guarantor of every amenity customarily rendered in the landlord-tenant relationship” and held that the implied warranty protects only against conditions that materially affect the health and safety of tenants or deficiencies that “in the eyes of a reasonable person ... deprive the tenant of those essential functions which a residence is expected to provide” (id., at 327-328 [emphasis supplied]). While Civil Court based its finding of a breach of the warranty of habitability in part on conditions reasonably related to health and safety and essential functions, it did not limit the implied warranty to such matters. Instead, the court interpreted the second prong of the statutory covenant - that the premises are fit for “the uses reasonably intended by the parties” - as encompassing the level of services and amenities that tenants reasonably expect to be provided under the financial and other terms of their individual leases. We reject Civil Court’s interpretation of the statute. As discussed, the implied warranty of habitability sets forth a minimum standard to protect tenants against conditions that render residential premises uninhabitable or unusable. Thus, the statutory reference to “uses reasonably intended by the parties,” rather than referring to a broad spectrum of expectations arising out of the parties’ specific contractual arrangement, reflects the Legislature’s concern that tenants be provided with premises suitable for residential habitation, in other words, living quarters having “those essential functions which a residence is expected to provide” (Park West Management Corp. v. Mitchell, supra, at 328). This prong of the warranty therefore protects against conditions that, while they do not render an apartment unsafe or uninhabitable, constitute deficiencies that prevent the premises from serving their intended function of residential occupation. Thus, for example, Appellate Term correctly concluded that operable elevator service is an essential attribute of a high rise residential apartment building because a reasonable person could find that it is indispensable to the use of the demised premises. The trial court’s contrary interpretation, based on expectations arising from the terms of the lease, would make the statutory implied warranty of habitability co-extensive with the parties’ lease agreement. However, the statute’s nonwaiver clause (Real Property Law §235-b[2]) indicates a legislative intent to insure the independence of the warranty of habitability from the specific terms of a lease. Moreover, as we noted in Park West Management, supra, §235-b was intended to provide an objective, uniform standard for essential functions, while the trial court’s standard creates an individualized subjective standard dependent on the specific terms of each lease. Furthermore, grafting the tenant’s contractual rights onto the implied warranty would unnecessarily duplicate other legal and equitable remedies of the tenant (see, 3 Warren’s Weed, New York Real Property, Leasing of Residential Property: Rights and Obligations of Landlords and Tenants §6.03, 7.01 [4th ed.]). Appellate Term thus correctly rejected the trial court’s application of the warranty of habitability. We also agree with Appellate Division’s determination that in light of the order remitting the case to Civil Court for recalculation of the abatement awards, it was premature to review Civil Court’s determination of the tenants’ counterclaim for attorneys fees. Likewise, because Appellate Term’s remittal order vacated the existing judgments, it was premature for the appellate courts below to review the parties’ entitlement to pre-judgment interest. We note, however, that entitlement to pre-judgment

interest is not dependent on prevailing party status, but rather, where, as here, the action is based on a claim of default on the lease agreement (see, RPAPL 711) and involves counterclaims for breach of the warranty of habitability and rent overcharges, the action sounds in contract and any party is thus entitled to pre-judgment interest upon recovery of a money judgment (see, CPLR 5001[a]; Siegel, NY Prac 8411, at 623 [2d ed. 1991]). Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

6. Lack of standing of the tenant (Rent abatements only lie for tenants who are actually in possession of the premises. A tenant out of occupancy may not assert a vicarious claim on behalf of a subtenant.) Halkedis v. Two East End Ave. Apt. Corp., 18 HCR 240A, 161 AD2d 281, 555 NYS2d 54, HCR Serial #00004890 (AD1 1990)

Decision Judgment, Supreme Court, New York County (Wilmer J. Patlow, J.), entered July 6, 1989, which dismissed plaintiffs’ complaint for failure to establish a prima facie case, unanimously affirmed, without costs or disbursements. The appeal from the order of the same court, entered June 13, 1989, is dismissed as superseded, without costs or disbursements. Plaintiffs purchased a cooperative apartment in 1979 for $239,951. They never resided in the apartment, nor did they furnish, decorate or attempt repairs to the unit, until the unit was under contract to be sold to a third party for $985,000. The contract of sale required plaintiffs to construct a solarium and to effect certain repairs. Plaintiffs allegedly replaced flooring and windows, and made other repairs, at a cost of approximately $55,000. Plaintiffs commenced this action against the apartment corporation for fraud breach of the warranty of habitability, breach of the Multiple Dwelling Law and breach of the proprietary lease. Plaintiffs claimed, essentially, that there were numerous defects in the apartment, various leaks which damaged the floors and walls, and discrepancies between the actual construction and the representations in the offering plan. Following the testimony of plaintiff Theodore Halkedis and his expert engineer, the court dismissed the complaint for failure to establish a prima facie case. The complaint was properly dismissed since, viewing the evidence presented in the light most favorable to the plaintiffs, by no rational process could a jury find in their favor (Candelier v. City of New York, 129 AD2d 145). The claim of fraud is without merit, both because any misrepresentations were made by the sponsor, not the defendant, and also, because plaintiffs reaped a substantial profit and cannot now be heard to complain that they were defrauded (60 NY Jur2d, Fraud and Deceit, par. 167). Assuming, arguendo, that the statutory implied warranty of habitability applies here (Real Properly Law §235-b), plaintiffs cannot avail themselves of its protection not only because they never made a bona fide attempt to live on the premises, but also because that section does not permit a tenant to recover property damages (see, 40 Eastco v. Fischman, 155 AD2d 231, 546 NYS2d 614). Whether stated as a breach of the proprietary lease or pursuant to section 78 of the Multiple Dwelling Law, under the circumstances herein, plaintiffs could have recovered damages to the cooperative unit which were approximately caused by the defendant apartment corporation’s failure to maintain or repair the common elements. While there was evidence that leaking water damaged the unit, plaintiffs entirely failed to establish the extent of the damage or the reasonable cost of repair. In this regard, proof that sums were expended to replace cabinets, windows and flooring was not specific as to the amount claimed for each item, nor did plaintiffs establish that the work done was reasonable necessary to repair the premises, as opposed to enhancing the unit with better and more expensive materials in connection with its forthcoming sale. Order filed.

7. Statute of limitations: A rent abatement as a counterclaim can only be asserted for six years prior to its assertion. Witherbee Court Assocs. v. Greene, 32 HCR 336B, 7 AD3d 699, 777 NYS2d 200, HCR Serial #00014339 (AD2 2004)

Decision In an action to recover damages for nonpayment of rent, the defendant appeals from a

judgment of the Supreme Court, Westchester County (Nastasi, J.), entered October 23, 2002, which, upon a jury verdict, and upon the granting of those branches of the plaintiff’s motion pursuant CPLR 4401 which were for judgment as a matter of law dismissing the first through tenth counterclaims, in effect, dismissed those counterclaims, and is in favor of the plaintiff and against her in the principal sum of $15,438.40.

ORDERED that the judgment is modified, on the law, by (1) deleting the provision thereof, in effect, dismissing the fifth counterclaim, and (2) deleting the provision thereof which is in favor of the plaintiff and against the defendant in the principal sum of $15,438.40; as so modified, the judgment is affirmed, without costs or disbursements, that branch of the motion which was for judgment as a matter of law dismissing the fifth counterclaim is denied, the fifth counterclaim is reinstated, and the matter is remitted to the Supreme Court, Westchester County, for a new trial to determine whether the plaintiff breached the warranty of habitability, and, if so, the amount by which the defendant’s rental arrears should be abated.

The defendant and her husband, Lawrence Greene, have resided in an apartment in Pelham Manor since 1991. The premises, owned by the plaintiff, were converted into condominiums named “Witherbee Court,” in 1994 pursuant to a noneviction plan. The defendant did not purchase the apartment, but remained in possession as a “nonpurchasing tenant” (General Business Law §352-eee[1][e]), most recently paying a rent of $2,150 per month plus $44.80 per month for a parking space.

In 1998 the plaintiff tendered a renewal lease with a rent of $2,400 per month and a $44.80 per month parking fee. In view of what the defendant perceived to be an unwarranted increase in rent for an allegedly deteriorating apartment coupled with the plaintiff’s reported failure or refusal to respond to her complaints and rectify the defects, she declined to execute the new lease. She initially continued to pay rent at the prior rate and later became, upon expiration of that tenancy, a month to month tenant (see, Real Property Law §232-c).

On or about October 1, 1999, the defendant began withholding rent and, following the June 2000 sale of the defendant’s unit to a nonparty, the plaintiff filed this nonpayment action. Its amended complaint sought judgment in the amount of eight months in rental arrears (October 1999 through May 2000) and parking fees at the rate contained in the proposed renewal lease or $19,558.40, plus counsel fees. The defendant’s answer interposed 11 counterclaims including, but not limited to, breach of the warranty of habitability (see, Real Property Law §235-b) and retaliatory eviction (see, Real Property Law §223-b). Her final counterclaim demanded a $2,150 judgment or setoff representing the amount of a security deposit retained by the plaintiff. The case was tried before a jury and, upon the close of evidence, the Supreme Court granted that branch of the plaintiff’s motion pursuant to CPLR 4401 which was for judgment as a matter of law on its claim for unpaid rent and parking fees, dismissed the defendant’s initial 10 counterclaims, and awarded her judgment as a matter of law on the remaining counterclaim.

Pursuant to Real Property Law §235-b, every residential lease contains an implied warranty of habitability which “protects only against conditions that materially affect the health and safety of tenants or deficiencies that ‘in the eyes of a reasonable person … deprive the tenant of those essential functions which a residence is expected to provide’” (Solow v. Wellner, 86 NY2d 582, 588, 658 NE2d 1005, 635 NYS2d 132, quoting, Park W. Mgt. Corp. v. Mitchell, 47 NY2d 316, 327, 391 NE2d 1288, 418 NYS2d 310, cert den 444 US 992, 62 L. Ed. 2d 421, 100 S. Ct. 523). While the warranty applies to month to month tenancies such as the defendant’s (see, Department of Hous. Preservation & Dev. of City of N.Y. v. Sartor, 109 AD2d 665, 487 NYS2d 1; Bey v. Thomas, 166 Misc2d 341, 633 NYS2d 95), any potential rent abatement therefore does not extend to the defendant’s ancillary parking expense. Since the applicable statute of limitations is six years (see, CPLR 213[2]; Sprague v. Luna Park Coop, 83 AD2d 877, 878, 442 NYS2d 105), the defendant’s claim is not restricted to the eight month period for which the plaintiff seeks rental arrears.

A motion for judgment as a matter of law pursuant to CPLR 4401 may be granted where the trial court determines that, upon the evidence presented, there is no rational process by which a jury could find in favor of the nonmoving party (see, Szczerbiak v. Pilat, 90 NY2d 553, 556, 686 NE2d 1346, 664 NYS2d 252). In considering such a motion, “the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant” (Szczerbiak v. Pilat, supra at 556; C.K. Rehner, Inc. v. Arnell Constr. Corp., 303 AD2d 439, 440, 756 NYS2d 608; Wong v. Tang, 2 AD3d 840, 769 NYS2d 381).

In this instance, viewing the facts in the light most favorable to the defendant, the evidence adduced at trial was sufficient to establish a prima facie case for breach of the warranty of habitability. The defendant testified, and submitted several photographs documenting her claim, inter alia, that some radiators and the oven were broken, a bathroom sink, the kitchen sink, and a toilet were not fully operational, the tile floor in the kitchen was “coming up,” there was water damage to the ceiling and walls, and several windows were cracked. Thus, there was sufficient evidence in the record to permit a rational factfinder to conclude that the warranty of habitability had been breached (see, Sazer v. Marino, 280 AD2d 537, 538, 720 NYS2d 406; Smith v. Maya, 1999 WL 1037917; 601 West 160 Realty Corp. v. Henry, 183 Misc2d 666, 671, 705 NYS2d 212, affd 189 Misc2d 352, 731 NYS2d 581). Accordingly, the Supreme Court erred in granting those branches of the plaintiff’s motion pursuant to CPLR 4401 which were for judgment as a matter of law on its claim for rental arrears and dismissal of the fifth counterclaim.

However, the Supreme Court properly dismissed the first through fourth and sixth through tenth counterclaims. There is no credible evidence of retaliatory eviction in the record (cf., 601 West 160 Realty Corp. v. Henry, supra). Similarly, “to establish a breach of the covenant of quiet enjoyment, a tenant must show either an actual or constructive eviction” (Grammer v. Turits, 271 AD2d 644, 645, 706 NYS2d 453; Kaniklidis v. 235 Lincoln Place Hous. Corp., 305 AD2d 546, 547, 759 NYS2d 389). Nor did the plaintiff’s alleged actions or inactions amount to a private nuisance (see, Kaniklidis v. 235 Lincoln Place Hous. Corp., supra at 547). The defendant’s remaining contentions are without merit.

8. No abatement lies for damage to or destruction of personal property. Mastrangelo v. Five Riverside Corp., 27 HCR 363A, 262 AD2d 218, 692 NYS2d 350, HCR Serial #00011394 (AD1 1999)

Decision Judgment, Supreme Court, New York County (Karla Moskowitz, J.), entered May 13, 1998, in favor of plaintiff tenant/shareholder and against defendant cooperative housing corporation in the total amount of $32,224.85, unanimously affirmed, without costs. The trial court correctly calculated the amount of plaintiff's damages for defendant's breach of the warranty of habitability (Real Property Law §235-b) as the difference between the maintenance paid by plaintiff and the rental value of the premises during the period of the breach (Elkman v. Southgate Owners Corp., 233 AD2d 104, 649 NYS2d 138; cf., Young v. GSL Enters., 237 AD2d 119, 654 NYS2d 24). Loss or diminution in value of personal property, such as in the value of a tenant/shareholder's shares, is not recoverable (see, Elkman v. Southgate Owners Corp., id.). While plaintiff's evidence of maintenance paid during the period of the breach was minimal, it was legally sufficient, and was properly credited in the absence of any countervailing evidence from defendant, who was in control of the relevant records. Similarly, plaintiff's proof of the duration and severity of the breach raised issues of credibility that were properly resolved by the trial court (see, Park W. Mgt. Corp. v. Mitchell, 47 NY 2d 316, 329-330, 418 NYS2d 310, 391 N.E.2d 1288, cert denied 444 U.S. 992, 62 L. Ed. 2d 421, 100 S. Ct. 523).

9. No abatement lies for conditions caused by the tenant himself. Ansonia Assocs. v. King, 20 HCR 306A, NYLJ 5/27/92, 24:2, HCR Serial #00041006 (Civ NY Tolub)

Decision “Because courts tend to overwrite opinions it may often be said that the discussion outran the decision.” R. Aldisert, Opinion Writing 10 (1990). Consistent with the principle that the primary’ purpose of a judicial opinion is to inform the participants and any reviewing court of the rationale underlying the court’s decision and ever mindful of the tendency of judicial opinions to resemble Papal Encyclicals, this court will endeavor as succinctly as possible to set forth its findings of fact and conclusions of law in what is probably the longest case tried to date in this court This opinion constitutes the courts decision after trial, of; (a) 16 of 135 remaining respondents in a consolidated non-payment proceeding; (b) an application, pursuant to Article 7A of the Real Properly Actions and Proceedings Lain for the appointment of an administrator to correct hazardous conditions; and (c) motions by the petitioner and respondents to punish for contempt, award punitive damages and for attorneys fees. To date this court has taken almost 22,000 pages of testimony over a period of one hundred twenty nine trial days. The parties have submitted almost 1,306 exhibits. This case is the quintessential example of the inability of the Housing Court to deal effectively with rent strike cases. Many of these 135 cases are nine years old and have become more complex by the passage of time. Rulings which were deferred, orders which were never entered and, the changes in the circumstances of the parties have complicated this trial to the point where both sides have become intractable and intransigent on issues which have long since been resolved. The Parties Ansonia Associates (“Associates”) is a partnership which since 1978, has owned the Ansonia (Pet. Exs. 1A and 1B). Associates is the petitioner in a series of nonpayment proceedings brought against tenants of the Ansonia and is the respondent in a proceeding commenced under Article 7A of the Real Properly Actions and Proceedings Law for the appointment of an administrator to collect the rents and operate the building. Associates is also the sponsor of a plan to convert the Ansonia to condominium ownership. In November 1991, the Attorney General accepted Associates amendment declaring the condominium plan effective (Tr. 9,737). Multiple dwelling registration number 127702 has been issued to Associates with respect to the Ansonia (Pet. Ex. 2). History of the Ansonia Constructed at the turn of the century in the French Beaux Arts style, the Ansonia stands some seventeen stories tall and occupies the entire blockfront on the west side of Broadway between 73rd and 74th streets. At the time of its construction it was the largest Apartment-Hotel in the world. The Ansonia has counted among its residents Enrico Catuso, Arturo Toscannini, Sol Hurok, Florenze Ziegfield, Elmer Rice and Babe Ruth. It was designated a landmark on March 14, 1972 (Pet. Ex. 478). The Ansonia’s original atrium construction permitted the infiltration of light and air into the building interior through a system of light shafts which ran from the second or third story up through the roof. The buildings’ main or flat roof was covered with quarry tiles which served as a roof deck had an open air solarium and a penthouse with toilet and

shower facilities for sunbathers. The structure was also notable for its decorous Mansard roofs, its horizontal balconies, its ironwork and limestone and terra cotta detail. The Ansonia changed hands a number of times before it was acquired by petitioners and it is clear from the record that some of these interim owners undertook extensive alterations without making applications to the building department. In 1949 plans were filed at the Department of Buildings (Resp. Ex. AAA) which resulted in the Department of Buildings issuing the Ansonia its first permanent Certificate of Occupancy number 38723 (Pet. Ex. 25 B). St should be noted that the Ansonia was constructed before the enactment of the New York State Multiple Dwelling Law in 1929 which established the requirement for a Certificate of Occupancy. In the 27 year period between the issuance of CO 38723 and the acquisition of the Ansonia by its present owner over 100 apartments were illegally created or altered. Major alterations were undertaken without the filing of plans with the Buildings Department and the Ansonia fell into disrepair. At the time the petitioner acquired the Ansonia rents had been frozen for almost two years based on uncorrected conditions and violations spanning over four years (Pet Ex. 10). The petitioners, without filings of any kind launched a campaign of illegally creating, eliminating or altering almost 150 residential units without applying for approvals, permits or new Certificates of Occupancy. From 1978 thru 1986 the petitioner illegally combined residential units and illegally installed cooking facilities into nonhouse keeping apartments. The work which required installation of gas, water and waste piping systems was done by unlicensed in house personnel based on sketches provided by a principal of the petitioner with no demonstrable architectural experience. The work did not comply with the Housing Maintenance Code as to the size of the waste pipes or to the Building Code as to the size of the gas pipes (Tr. 498-514). Although the Ansonia had been cited for violations in the past it apparently had not been the subject of a full blown inspection. In February, March and November of 1985 the Department of Buildings and the Department of Housing Preservation and Development descended en masse at the Ansonia and documented literally hundreds of violations. In April of 1986 the petitioner filed alteration application number 538-86 with the Department of Buildings (Resp. Ex. CCCC). The purpose of the application was to obtain a Certificate of Occupancy, to legalize the existing conditions and bring the building into compliance. The Building Department raised numerous objections and it was not until February of 1989 that the plans were accepted. The delays in approval were occasioned in part by the necessity of obtaining waivers for the alleged gas and waste pipes, the discovery that the petitioner made false statements in the application relative to single room occupancy and the discovery that there was friable asbestos in three of the shafts in which petitioner proposed to ventilate kitchenettes and bathrooms. The discovery of asbestos required a modification of the proposed work at the Ansonia. The petitioner proposed to seal the shafts containing asbestos and reroute ventilation ducts throughout the building to other open air shafts. Plans were accepted in February of 1989 after the Department of Health withdrew its previous order to compel total removal of “all corrugated and compressed asbestos” (see Resp. Ex. KKK & Pet . Ex. 105A). Prior and Related Litigation

There are few judges of any seniority, either in this Court, the Supreme Court, the Appellate Division or the Court of Appeals, who have not at one time or another had a “piece” of the Ansonia. I’ ve attempted to briefly summarize the more significant aspects of the this litigation to explain why the court’s findings are based on 1982 rents and to enable other courts to view this court’s finding in light of the events preceding and continuing through this trial. For purposes of brevity this discussion will be limited to those events which followed the initiation of those proceedings which are the subject matter of this litigation. In the summer and fall of 1983 members of the Ansonia Tenants Coalition (ATC) headed by Thomas Soja and members of another tenants group, the Ansonia Residents Association (ARA) engaged in a rent strike which resulted in a series of nonpayment proceedings being brought in this court. The ATC represented 137 tenants and the ARA represented 194 tenants. The basis for the rent strike was essentially severe water damage and the lack of hotel services. At this time the Ansonia was still classified as a hotel. In November of 1983, ATC brought a proceeding before the Conciliation and Appeals Board (the predecessor of the Department of Housing and Community Renewal “DHCR”) seeking to have the Ansonia reclassified as an Apartment Building. The ARA followed suit in March of 1984 when it commenced a rent overcharge proceeding with the Conciliation and Appeals Board (DHCR assumed jurisdiction on April 1, 1984). The basis for ATC’s complaint was that the petitioner had long since ceased to provide Hotel services, that the Ansonia was a de facto multiple dwelling and that the tenant’s should be afforded the less stringent treatment under rent stabilization. In May of 1984 Judge Sparks, granted partial summary judgement (Ansonia Associates v. Speratore et. al., L&T 95988/83) holding that the Ansonia was in fact an apartment building, subject to rent stabilization and reserved the issue of rents and services pending the determination by DHCR. In August of 1984 the District Administrator ruled in favor of ATC position to the extent of rolling rents back to the 1982 level, but rejected the ATC contention that the rents should be rolled back to the rent in force at the inception of each tenant’s occupancy. All of the parties, the landlord, ATC and ARA filed petitions for Administrative review which were denied in January of 1985. An article 78 ensued and in August of 1985 Justice Pecora modified the DHCR decision. The Appellate Division reversed and the parties went to the Court of Appeals. The Court of Appeals denied the ATC and ARA applications and considered only the landlords appeal. The Court of Appeals decided Ansonia Associates v. State Division of Housing and Community Renewal, (69 NY2d 88) in February of 1987. The Court ruled that a building wide rollback was improper, and that only complaining tenants were endued to refunds based on the value of the services not provided by the landlord. The Court remitted the matter to the Supreme Court to consider the tenant’s complaints on an individual basis. Supreme Court remanded the matter to DHCR requesting certain findings and on appeal the Appellate Division ordered its own reference (Ansonia Associates v. DHCR, 147 Misc2d 420). The DHCR issued it decision in June of 1990. DHCR set dollar amounts for the hotel services which the landlord discontinued, it declined to hear any rent overcharge complaints by ATC tenants and it directed the landlord to file amended initial and actual

registration statements from 1984 through the date of DHCR order for every rent stabilized unit in the building. This order became the subject of an Article 78 proceeding and Judge Saxe in a decision dated January 16, 1992 remanded the matter to the DHCR. He directed that the DHCR: 1) direct the landlord to tender to each tenant, ATC or ARA, a choice of either a one or two year lease based on the lawful stabilized rent applicable as of August 13, 1984; and 2) to calculate rent reductions for the time beginning 30 days after each tenants complaint and ending on August 13, 1984. In all other respects he confirmed the DHCR order. Absent modification or reversal, the DHCR is now required to set rents for the tenants on a tenant by tenant basis. Addionally, the DHCR has before it an order of Justice Glenn which, as modified by the Appellate Division, directs rental reductions based on prior major capital improvement increases. At this juncture it would clearly be inappropriate for this court to establish correct rentals when two courts of superior jurisdiction have directed the DHCR to set rentals in accordance with their mandates. Indeed, because of the imminent appeal of Judge Saxe’s decision it might be regarded as an exercise in frugality. Accordingly, this court has chosen to proceed with its determination utilizing the 1982 rent levels. In the interim with the exception of some notable events, the within summary proceedings languished. The most notable event was an outbreak of peace. Ansonia Associates and ARA reached a settlement as to their non-payment proceedings. The second notable event was the August 1986 order of Judge Sparks requiring that roof repairs be commenced and that missing skylights be restored. A third order was the June 1990 order of Judge Kitzes directing that the respondents afford access to the petitioner to effect repairs as to asbestos and ventilation related matters.

The most universally ignored order was the June 1986 order of Judge Sparks directing the payment of rent pendente lite. It was only after an Appellate Term order dated July 26, 1991 and subsequent orders of this court dated November 29, 1991 and February 4, 1992 that current rents have been paid into court and a portion of back rent paid to the petitioner. The petitioners, not to be outdone, dallied for over a year after their deadline before beginning roof work, and the respondents to date only permit access for repairs grudgingly in violation of Judge Kitzes’ order. R.P.A.P.L.-Article 7A Article 7A permits “[o]ne third or more of the tenants occupying a multiple dwelling” to maintain a special proceeding for the appointment of an administrator to operate a building on the grounds that “there exists in such dwellings or in any part thereof a lack of heat or of running water or of light or of electricity or of adequate sewage disposal facilities, or any other condition dangerous to life health or safety which has existed for five days, or an infestation by rodents, or any combination of such conditions; or of course of conduct by the owner or his agents of harassment, illegal eviction, continued deprivation of services or other acts dangerous to life, health or safety” (R.P.A.P.L. §770). A finding that such conditions exist mandates the appointment of a receiver (R.P.A.P.L. §776; Maresca v. 167 Bleeker Inc., 121 Misc2d 846 [Civ. Ct. NY County 1983]). If, however, the landlord can establish that such conditions do not exist or have been removed or remedied, this shall be a defense to the appointment of an administrator (R.P.A.P.L. §775(a); Feliciano v. Kia, NYLJ 6/11/90, p. 26, c. 1 [A.T., 1st Dept., 1990]).

This court is of the opinion that the appointment of an administrator is not warranted in that: 1) dangerous conditions do not exist at the Ansonia; 2) those conditions that might have been considered dangerous have been removed or remedied; 3) there has been a concerted effort by the tenants and the ATC as an organization to deny entry to the landlord to effectuate repairs; and 4) the petitioners in the 7A proceeding have failed to demonstrate to the court that they constitute one third or more of the tenants occupying the Ansonia. Conditions at the Ansonia Based on the testimony of eight experts, the tenants and this court’s own inspection of April 20, 1992, this court has come to the conclusion that the Ansonia is simply not bad enough to warrant the appointment of an administrator. Although the 7A petition in this matter is replete with allegations relative to the “dangerous conditions” at the Ansonia there are really only four major areas which warrant discussion. They are: 1) the condition of the Flat and Mansard roofs; 2) the condition of the masonry or Local Law 10 items; 3) the soffits; and 4) asbestos removal. Flat and Mansard Roofs The problem of water intrusion has plagued the Ansonia for almost two decades. In 1972 the Conciliation and Appeals Board (“CAB”) issued opinion 2092 directing the prior owner to undertake repairs to the roof to prevent water seepage (Pet. Ex. 19). That direction, was reiterated in opinion 2277 supplement one and resulted in a building wide rent freeze some two and one half years later (Pet. ex. 10). Shortly after the acquisition of the building, Ansonia Associates sought to remedy these leaks with the installation of a “Koppers” roof (Tr. 14,511). Significantly, as the CAB on Feb. 7, 1980 stated, “substantial moneys have been spent to date for building repairs and improvements ($1,785,891) that such expenditures included, among other things, exterior painting and waterproofing, new flat roof, interior plastering, painting and plumbing work to correct leaks” (Pet. ex. 11). On October 13, 1981, Judge Sparks found that leaks, which were the subject of a proceeding relating to 46 apartments, had been remedied (Pet. ex. 437) and one week later the CAB lifted a rent freeze involving the very same apartments (Pet. ex. 438). In January of 1983 the CAB, based on an inspection of roof level apartments which revealed no evidence of moisture, granted a Major Capital Improvement (“MCI”) increase (Resp. ex. 25 R’s). All however, was not well, for eighteen months later the MCI increase was rescinded when the CAB discovered seepage (Resp. ex. U). In the Spring and Summer of 1986 hearings were held by Judge Sparks to determine what repairs had to be made to remedy the leaking roof. The Hearing resulted in an order dated 8/15/86 (Sparks, J.) which ordered the installation of a new roof, repairs to the Mansard roofs and the restoration of skylights (pet. ex. 35). That work was completed in 1988, but not without inconvenience to the tenants directly below the roof. There was extensive damage to many apartments particularly those apartments where skylights were restored (Resp. ex. 31 A, C, E, I, J, K, L and 30 Y, Z). Dissatisfaction with the 1988 roof, the so called Maslowe-Balser roof, resulted in the hiring by Ansonia Associates of Commercial Roofing Analysis (“CRA”) in November of 1989 (Tr. 19,378). Rainer Gerbatsch, President of CRA, testified of the continuing relationship with Ansonia Associates and his companies activities at the site. Utilizing infrared scanning (Tr. 19,394) for the flat roof and utilizing a boatswains chair to hang

out over the Mansard roof (Tr. 19,490) Gerbatsch has spent the last two years supervising a contractor doing repairs to the roof. Additionally, CRA developed a program for spotting and analyzing reports of new leaks (Resp ex. 25 V’s). In the two years since CRA’s involvement it is clear to this court that most of the leakage has been remedied, notwithstanding Ansonia Associates admission that there is further work scheduled much of it for this spring. (Tr. 19,475; 19,678-9). On April 20, 1992 this court conducted its own inspection at the Ansonia. The inspection was conducted in part to ascertain whether in fact the roofs at the Ansonia are still leaking and if so is the condition such as to warrant this courts appointment of an administrator. The court’s visit occurred after several days of consecutive rain, some of it severe. The court brought its own moisture meter. Briefly stated, the court first visited the flat roof and found little if any accumulations of water. This to the courts mind indicated adequate drainage. The court inspected the public areas of most of the top floor and there was no evidence of leakage of any kind. The court visited four top floor apartments; 17-129 the Thenebe apartment, 17-90 the Oldfather apartment, 17-08 the Baran apartment, and the Tower Duplex. In 17-129 there was no evidence of new leakage, albeit there was extensive evidence of old damage which the tenant has not permitted the landlord to repair (Tr. 21, 128, Pet. ex. 597a-d). Ms. Thenebe’s testimony of current leaks (Tr. 21, 126) was not borne out by this court’s inspection. The Oldfather apartment (17-90), the scene of admittedly terrible devastation in 1987, evidenced one small area of possible leakage and a moisture meter test revealed that the area was dry. The Baran apartment (17-08), and the Tower Duplex revealed no sign of any damage or leakage. The court notes that the overwhelming majority of photos evincing water damage, some evincing active leaks, were taken before completion of the Balser-Maslowe roof and few if any subsequent to CRA and Castle Restorations remedial work. It is this courts opinion that for purposes of roof repair there is no demonstration that the appointment of an administrator is warranted, as apparently the conditions complained of have for the most part been remedied. Local Law 10 - The Facades & Balconies The tenants have advanced the argument that the facade and balconies of the Ansonia are in such an unstable and hazardous condition as to compel the appointment of an administrator The facade of the Ansonia, as the Landmarks Preservation Commission noted, is highly ornamental in the Beaux Arts style. It is constructed of limestone, terra cotta and light colored brick (Pet. ex. 478). The balconies, which exist at various levels, are purely aesthetic and are not for the tenants use (Pet. exs. 142, 155, 295 ¶39). The claim that the facade and balconies are in hazardous condition, is predicated on the testimony of a tenant, Ms. Greco, that on June I, 1990 a piece of masonry fell to the sidewalk (Resp. ex. 111’s, Tr. 7016); the violations contained in Resp. Exs. 8E’s, and 111’s. The “Feuer” report (resp. ex. 25K’s [1-6]); and respondents exhibit 25 O’s. In addition Robert Feuer, P.E. testified about the facade and presented his calculations (Resp. ex. 26E’s) to support his contention that the thirteenth floor balcony was in imminent danger of collapse and would be strewing rubble over the intersection of Broadway and 74th street. The owner relied primarily on the testimony and Local Law 10 report of Vincent Stramandinoli, P.E. and the report of Stanley H. Coldstein, P.E.

The evaluation of expert testimony presents this court with its most perplexing dilemma. How can two licensed engineers, specialists in Local Law 10 work come to such divergent conclusions as to safety of the facade and balconies. The answer appears to be that whereas Mr. Stramandinoli, who prepared the third gale of the Ansonia Local Law 10 report based his conclusions on up close observations of the facade and balconies, Mr. Feuer relied on photographs taken from afar and a report apparently prepared in great haste (Tr. 17,489-90). Mr. Feuer submitted a five volume report on conditions at the Ansonia covering the roofing, the ventilation, the facade and the electrical work (Res. ex. 25K’s 1-6). By his own statement (Tr. 17,481 et. seq.) he spent 24 hours in field work and possibly as little as 20 hours at the Ansonia. Inasmuch as Mr. Feuer’s conclusions were based on conditions he photographed from a distance, some of the conditions he highlighted turned out to be innocuous mistakes (see Cerbatsch testimony Tr. 19,675-76). Evincing Mr. Feuer’s rush to judgement, there is Mr. Feuer’s testimony with respect to the thirteenth floor balcony. To quote Mr. Feuer “[t]his balcony could fall off at any time, at any time it can fall on one of the busiest sections in the area.” (Tr. 16,967) In response to the courts inquiry and in his calculations, Mr. Feuer testified that the balcony had a downward displacement of four inches (Resp. ex. 26 E’s; Tr. 16,969). Although it was obvious that the balustrade of the balcony had shifted and may have posed some danger,the vision of hundreds of pounds of terra cotta and other stones falling, clearly was designed to inflame the court In point of fact, the court directed an emergency inspection by the buildings department. That inspection and this court’s own observation on April 20th confirms that the balcony itself does not appear to have a downward displacement, much less one of four inches and is not in danger of collapse. Mr Feuer’s lenders to the building commissioner written a few days earlier, fail to mention such a displacement (Resp. ex. 26G’s 2). When this court is required to evaluate the testimony of Mr. Feuer and the contradictory testimony and conclusions of Mssrs. Stramandinoli and Gerbatsch, Mr. Feuerls testimony comes up short. While not altogether satisfied that the landlord’s experts have been totally candid in their evaluations, their testimony is based on first hand, up close observations of a good part of the roofs and stone facades. Utilizing boatswain chairs, soundings of the facade, and up close observations they have concluded that the facade and roofs are not in hazardous condition. Mr. Feuer’s observations are based on distant photographs and a rough, slipshod analysis whose primary goal appears to be to panic this court into rash action. In short, the tenants have failed to establish that the roof and facade are hazardous conditions warranting the appointment of an administrator. The Soffits One of the great mysteries of the Ansonia is what, if anything, is holding up the ceilings and the Soffits which contain the Ansonia’s extensive ventilation system. The system was designed by Richard Balser, a licensed professional engineer. Both Robert Feuer, the tenants engineer, and Stanley Goldstein, the landlords engineer, concur that the Balser computations are incorrect. Yet, neither Mssrs. Goldstein or Feuer have explained to this court’s satisfaction, why the soffits are hanging. The tenants claim that the soffits have overloaded the ceiling and that there will be ceiling collapses in the same manner as occurred in the Croissant shop in March of 1990.

Ansonia Associates claims that the soffits and ceilings are perfectly safe, albeit they are not sure of the theoretical physics (Tr. 18,565-9). Ansonia Associates, based on Mr. Goldstein’s recommendation: (Tr. 18,571) conducted test loads on all of the floors at the Ansonia. Designed by Mr. Goldstein (Pet. ex. 504,505; Tr. 18,572 et. seq.), the tests are conducted by Testwell Craig, a licensed testing company. The tests involved weights of 250 of the current dead weight, in twenty separate locations throughout the building (Pet. ex. 507). The tests were supervised by an employee, Andrzej Okolski, P.E. of Stanley Goldstein Consulting Engineers. Each test was conducted over a 24 hour period. There were no test failures and “the tests performed sustained the test load for the 24 hour period with recorded deflection readings below the maximum allowable of .250 inches” (Pet. Ex. 508 p.3). Nine of the tests showed no residual deflection (Tr. 18,618) and the balance showed a residual deflection well within the guidelines (Tr. 18,635). There was no sign of cracks or stress (Tr. 19,027), and the court is convinced that based on the testimony of Mr. Steiner (Tr. 19,008) that adequate precautions were taken to insure the integrity of the tests. In short this court is convinced that the empirical data supports the conclusion that the ceilings are more than adequate to support the soffits.

Asbestos No single issue has caused more panic or consternation at the Ansonia than that of Asbestos. Sometime in the fall of 1987, Roger Bason a tenant in the Ansonia (Tr. 8,297) noticed asbestos in some of the apartments and hallways. Mr. Bason was employed by Contest, Incorporated, an asbestos management consulting firm which was performing asbestos abatement at the Empire State Building. He began his training in asbestos handling in September of 1987. Mr. Bason was also an instructor in Martial Arts at the Tai Chi Chuau School in New York. Retained by the ATC in October 1987 he performed asbestos testing on his days off and in the evenings. He billed ATC on a time basis. Mr. Bason left Contest, Inc. in 1988 and went to work for L.U.I. Environmental Services and in 1990 went to work for Asbestos Abatement Services. Inc. After six months he opened his own business, Institute for a Sustainable Future which he runs with his wife out of his home in New Jersey (Tr. 8,310-14). When Mr. Bason was first retained by ATC, he was unlicensed as a New York City Asbestos Handler. Notwithstanding Mr. Bason’s inauspicious beginnings he did apparently make the earliest known discovery of asbestos at the Ansonia. Mr. Bason testified that there were public areas on the seventeenth floor where he noticed asbestos insulation hanging off the heating system in the public hallways. Bason brought this condition to the attention of Thonas Soja, president of the ATC, who in turn brought this condition to the attention of Ansonia Associates. The petitioners retained the consulting firm of Barnes & Jarnis which completed its initial asbestos survey in October of 1988 and a supplemental survey in August of 1989. The surveys documented extensive asbestos conditions in the Ansonia. A two phase asbestos survey and removal program commenced in March of 1989 and continued until August of 1990. It continues to a lesser extent to date. The removal and abatement program was supervised by Bames and Jarnis. As early as March of 1988, Mr. Bason recommended and the ATC adopted a policy of refusing access to the landlord for the purposes of asbestos removal (Pet. Ex. 209 a&b, 237). That policy holds to this very day On the seventeenth floor, work in the public areas, has been stymied for over two and one half years by the ATC (Tr. 14,501 et. seq.; Pet. Ex. 226). The first question presented is whether under the circumstances of this case, it is reasonable for ATC tenants to deny access to Ansonia Associates asbestos abatement contractors. The second question posed is whether Ansonia Associates decision to seal shafts 5,6, and 7 was reasonable, and if not should this court appoint an administrator to open these shafts and remove all of the asbestos. All told, this court has heard almost two months of testimony concerning the issue of asbestos. The court concludes that with respect to asbestos, the condition is not dangerous to life, health or safety and that the program of abatement undertaken by Ansonia Associates will effectively deal with the problems at the Ansonia. There are two principles which formed the basis for the court’s conclusion that the program Ansonia Associates has been engaged in is adequate. The first is one enunciated by the Environmental Protection Administration in its booklet, “Managing Asbestos In Place, A Building Owners Guide to operations and Maintenance Programs for Asbestos Containing Materials” (Pet. Ex. 245), which states, “Although asbestos is hazardous, the

risk of asbestos-related disease depends on exposure to airborne asbestos fibers” (ibid. p. vii). The second principle is more legalistic in nature, the oft stated principle that courts will defer to administrative agencies in their areas of expertise (Eli Haddad Corp. v. Cal Redmond Studio, 102 AD2d 730). Ansonia Associates retained Barnes & Jarnes a consulting engineering firm to supervise the asbestos abatement program at the Ansonia. The asbestos abatement program is directed by Richard Miller, Barnes & Barnes’ vice president and treasurer. Miller holds certified asbestos investigators licenses from Massachusetts, Vermont, Connecticut, Rhode Island and the State and City of New York. He’s been working in the field since 1983. A civil engineer, Mr. Miller and his firm have worked in the abatement programs at the Metropolitan Museum of Art, the Guggenheim Museum and 32 Gramercy Park (Tr. 10,458-60). Barnes & Jarnes supervised abatement work at the Ansonia from March of 1989 through June 1990 (Pet. Ex. 102 A-F). Since the inception of the program the Department of Environmental Protection has closely monitored the manner in which the abatement program has been carried out. From the time the program commenced, to date no violations have been issued relative to conducting proper air tests or leaving debris in abated areas (Pet. Ex. 105a, 153, Tr. 111,724-25). More significantly, the New York City Department of Environmental Protection has approved the sealing of shafts 5,6 and 7. The only violation that the court is aware of predates Barnes & Jarnes supervision by almost one year (Resp. Ex. 3 E & F). At this juncture the only outstanding asbestos conditions which can be found are in those apartments where access has been denied by ATC members and the seventeenth floor public areas where the concerted effort of ATC has effectively prevented removal. Accordingly, this court concludes that there are no hazardous conditions relating to asbestos at the Ansonia which Ansonia Associates has not remedied or which they’ ve offered to remedy but have been denied access. Denial of Access - R.P.A.P.L. §772 Were one to peruse a printout of all the violations recorded by the HPD at the Ansonia, one would have to conclude that the Ansonia is a slum and that conditions have festered at the Ansonia for years without an attempt at cure. That simply is not the case. At the outset the court notes that many a violation which might go unnoticed elsewhere is promptly reported and pursued by the ATC. More significantly, many of the violations of record have not been cured because ATC tenants have denied the landlord access to cure violations where repairs have been made tenants have not afforded an opportunity for reinspection. Additionally the ATC as an organization has denied the landlords access or has placed such pre-conditions on access as to effectively deny the landlord access notwithstanding court orders to the contrary (see Pet. Ex. 41 c&d). For example, of the tenants who came to court and testified Preston King (Apt. 3-16) has denied access for repairs since January of 1989 (Pet. Ex. 61). The Devliger/Johnson’s (Apt. 6-10) have denied access to conduct plumbing probes or perform asbestos abatement (Resp. Ex. 6G’s). In the Soja/Ferrick apartment (6-42) the landlord has been denied access to clear violations (Pet. Exs. 95 & 96). Paul Rogers (Apt. 9-40) has similarly denied access (Tr. 5,951 et. seq.; Pet. Exs. 123 & 124). Ansonia Associates attempts to cure ventilation problems in the Minor apartment (10-36) has been stymied (Pet. Ex. 115). Louise Case has not permitted access to the landlord to permit the

installation of a kitchenette (Pet. Ex. 101) Alfred Scott (Apt. 12-187) has denied access for the purpose of asbestos abatement in his apartment (Pet. Ex. 101). Helen Greco (Apt. 13-18) has selectively denied access since June of 1988 (Tr. 7,213-28; Pet. Ex. 159). Similarly the Oldfather/Robinson’s (Apt. 17-90) have resatedly denied access for a variety of purposes (Pet. Exs. 375, 382, 400). Mary Thenebe (Apt. 17-129) has repeatedly refused access to permit painting and plastering notwithstanding horrendous conditions in the apartment (Pet. Ex. 597 a-d; Tr. 21, 125-31). The ATC has been at the center of a campaign to deny access to the landlord for purposes of making repairs or for the abatement of asbestos (Pet. Exs. 48, 50 h, c, d, e, g, 209B, 214, 226, 227, 237, 239). Indeed a reading of the ATC newsletters (see, Pet. Ex. 239 evinces the determination to get as many violations on the building as possible. Tenants are cautioned not to warn the landlord of “surprise” HPD inspections. The goal is to accumulate violations, not cure conditions. More significantly many of ATC newsletters were clearly designed to panic reticent tenants into denying access for asbestos abatement, citing horrors which were without any basis. I find that it is unreasonable for the ATC tenants to deny Ansonia Associates access to perform repairs.

One Third Requirement R.P.A.P.L. §770(1) provides as follows: “One third or more of the tenants occupying a multiple dwelling may maintain a special proceeding as provided in this article...” The appointment of an administrator is a drastic remedy and the one third requirement in this court’s opinion is a legislative safeguard to insure that this remedy is not invoked unnecessarily. The requirement that occupants, not merely tenants, serve as the basis for utilization of Article 7A is in some respects analogous to the limitations of section 235-b of the Real Property Law, dealing with the warranty of habitability to occupants (see, Halkedis v. Two East End Ave. Apt. Corp., 161 AD2d 281; Park South Tenant Corp. v. Chapman, NYLJ 8/26/91 p.24 c.2 [A.T. 1st Dept.]; 25 W. 13th St. Corp. v. Gerevitz, 128 Misc2d 74). Section 770 is clear and unambiguous, only occupants may maintain a 7A proceeding. The significance of this becomes clear when one considers the affidavits submitted by petitioner-tenants in the 7A proceeding. The affidavits state that the affiant are “tenants” and fail to address the question of occupancy. This is not a drafting error. Of the tenancies this court has heard to date there are a significant number of tenants who have in the past subleased their apartments or whose present occupancy is at best questionable (see King, Ferrick, Zuvich, Costa, Steinberg Baran, Oldfather/Robinson and Giammatteo). Many of the affidavits come from foreign countries (Japan, Hungary, Germany) or are from out of state. Moreover the incentive to retain those apartments goes beyond their residential value. Aside from their utilization as residences some are used for business purposes (on inspection the court found that Mr. King’s apartment bore the legend King Enterprises). Additionally, many of these apartments are apparently rented out as music studios (Tr. 12,711-12). Under these circumstances the petitioner-tenants are required to satisfy the requirement that one third of the occupants of the Ansonia are parties to this proceeding having failed to do so this court is required to dismiss the petition.

The Summary Proceedings Preliminarily the court notes that the respondents have interposed a number of defenses to the underlying proceedings the first being that these proceedings may not be maintained because the Ansonia does not have a valid certificate of occupancy. M.D.L. §§301 and 302 prohibits the prosecution of a summary proceeding where there is no valid certificate of occupancy. This court is required to consider whether the Ansonia has a valid certificate of occupancy and what are the consequences of not having a valid certificate of occupancy. The ATC’s primary challenge concerns the apartment count at the Ansonia and the illegal kitchenettes. A brief history of the Ansonia reveals that in July of 1951 the Department of Buildings issued C.O. #38273 (Pet. Ex. 25B). An amended C.O. #76533 was issued on March 16, 1976 (Pet. Ex. 26) and on April 25, 1978 C.O. 78424 was issued. None of the amendments reflected any changes in the apartment or residential room count. After Ansonia Associates took title, it undertook a series of renovations, previously discussed, without filing plans or applications. An analysis of the relevant testimony (see, Tr. 1299-1486) reveals that 1) when Ansonia Associates took title were numerous apartments which have been created subsequent to the plans which formed the basis of C.O. #38723; 2) that these alterations were not reflected in either of the two subsequent amendments; and 3) Ansonia Associates work in the main, was the consolidation of apartments thereby decreasing the number of apartments. It would appear that today Ansonia has 30 less residential units overall as a result of these consolidations. In January of 1986, Ansonia Associates filed an alteration application which resulted in the issuance of C.O. #86624. Again this application never reflected that changes were made in the residential areas of then Ansonia. Finally, in April of 1986 Ansonia Associates filed alteration application 538-86 which filing was approved in April of 1988, which reflect the current conditions at the Ansonia. Notwithstanding the decreased room count and the pending application before the department of Buildings, Lewis Schrayer Ansonia’s agent pleaded guilty to having violated the Ansonia’s Certificate of Occupancy by having too many apartments. On March 16, 1987 and May 17, 1989 he entered guilty pleas in the Criminal Court of the City of New York (Resp. Exs. 3V’s and 3W’s). Respondent-tenants urge the pleas as res judicata the proposition that there was no valid certificate of occupancy at the Ansonia and the petitioner landlord is barred by M.D.L. §§301 and 302 from collecting rent and maintaining these non-payment proceedings. This court concurs that if in fact there was an increase in the number of habitable rooms a new certificate of occupancy would be required (Administrative Code §27-215). However, this in and of itself is not dispositive of the issue, the respondents must show, on a unit by unit basis, that the legal unit was one of those affected by the offending renovations (Milbeck Apts. Inc. v. McLeon, NYLJ 10/9/90 p.28 c.2 [A.T. 1st Dept.]). As the court stated in Milbeck (supra), “Subsequent to the issuance of the certificate, alterations were made adding additional numbers of dwelling units. while HPD records show that violations were placed on the premises referable to the later alterations, the tenant occupies a legal unit under the existing certificate whose structure was unaffected by the offending renovations. In this context, a forfeiture of the entire rent would be unwarranted and inequitable (cite

omitted). To the extent tenant has valid habitability claims, they may be presented at the trial of this proceeding.” To defend under M.D.L. §§301 and 302 a tenant must also demonstrate that the alterations undertaken adversely affect the habitability of the unit (see, Coulston v. Teliscope Productions Ltd., 85 Misc2d 339 [A.T. 1st Dept. 1975]; 50 E. 78th Corp. v. Fire, NYLJ 12/2/90 p.25 c. 1 [A.T. 1st Dept]). The court will therefore evaluate on an individual basis the extent that any alteration had on each of the units. The second grouping of common defenses by the respondent-tenants, relate to those defenses raised by the so called amended answers. At the close of the trial counsel for the respondent-tenants presented 16 sets of amended answers containing a blunderbuss of technical defenses and counterclaims not heretofore raised. The court permitted these pleading solely to the extent that sought to conform the pleading to the proof adduced at trial. To the extent there has been proof, these matters will be considered, however the court finds that as to these “group defenses” relating to jurisdiction they may not be maintained inasmuch as they were waived by stipulation in the Matter of Ansonia Associates v. Stewart et. al., Index No. 100848/84 (Pet. Ex. 39; Tr. 2048-58) I also find, that as to some of the parties, the provisions of the stipulation dated January 30, 1981 (Pet. Ex. 23; Tr. 21,683) are binding.

Summary Proceedings and the Warranty of Habitability In every lease or rental agreement for residential purposes, the landlord or lessor is deemed by statute to covenant and warrant that the premises are fit for human habitat ion and for the use as reasonably intended by the parties and that the occupants of the premises will not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety (Real Property Law §235b). The obligation to pay rent is dependent on the landlord’s satisfactory maintenance of the premises in a habitable condition (Park West Management v. Mitchell, 47 NY2d 316, 327). Moreover, the warranty of habitability can apply to conditions resulting from events beyond a landlords’ control. As the Court of Appeals explained in Park West Management (supra p.327): “ ... as the statute places an unqualified obligation on the landlord to keep the premises habitable conditions occasioned by ordinary deterioration, work stops by employees, acts of third parties or natural disaster are within the scope of the warranty as well (cf, Uniform Residential Landlord and Tenant Act §2 104). Inasmuch as the landlord is vested with the ultimate control and responsibility for the building it is he who has a corresponding non-delegable and non-waiving duty to maintain it.” Although the statute excludes no residential tenants and includes all entities as landlords including governmental agencies (Dept. of Housing Preservation and Development v. Sartor, 109 AD2d 665), the warranty of habitability does not extend to a tenant who subleases his apartment and does not occupy it (Halkedis v. Two East End Ave. Apt. Corp., 161 AD2d 281; Park South Tenant Corp. v. Chapman, NYLJ 8/26/91 p.24 c.2 [A.T. 1st Dept.]; 25 W. 13th St. Corp. v. Gerevitz, 128 Misc2d 74). The proper measure of damages for breach of the warranty is the difference between the fair market value of the premises as measured by the rent reserved under the lease and the value of the premises during the period of the lease (Park West Management v. Mitchell, supra at 329). The award may take the form of a lump sum or percentage reduction. Because of the uncertainty of the current rental the court has chosen, where applicable to make awards on a percentage. An abatement can only if the landlord has notice of the condition complained of (East 56th Assoc. v. Schwartz, NYLJ 9/23/87 p.6 c.2 [A.T. 1st Dept]). If the tenant, or a person under his control, causes the condition by his misconduct there is no breach of the warranty (Real Property Law §235-b(l)). Nor can the tenant recover on the warranty if he refuses access (56 MacDougal St. Cos v. Miller, NYLJ 4/22/90 p.22 c.3 [A. T. 1st Dept.]). Moreover, a court may reduce an abatement where a tenant is unreasonably uncooperative (Frank v. Park Summit Realty Corp., NYLJ 10/4/89 p.22 c.2 [Sup. NY Co. Baer, J.]). [Material deleted for publication ] Epilogue The respondents in this action have sought punitive damages for petitioner’s failure to abide by court orders and for various acts of harassment. The court is of the opinion that both sides have equally disdained orders of the court, albeit with differing consequences and declines to award punitive damages for past acts of the parties indifference. The court notes that were these current orders of this court the court would impose severe sanctions to effectuate its mandate. Moreover, the court does not believe the acts of the petitioner-landlord have risen to such a level as to constitute harassment.

Both sides have sought attorneys fees and the court will defer the assessment of such fees until the completion of these proceedings, when the court shall conduct a hearing on this issue.

10. No abatement lies outside of the residential context. Smith v. Pet Port Corp., 27 HCR 306A, NYLJ 6/2/99, 35:1, HCR Serial #00011351 (AT 9 & 10)

Decision Appeal by tenant from a final judgment of the District Court, Nassau County (A. Bergstein, J.) entered December 26, 1997 which, inter alia, awarded landlord possession and the sum of $13,307.50. Final judgment unanimously affirmed without costs. In this proceeding to recover possession of a store and basement and rent owed for the period from October, 1996 through August, 1997, tenant asserted a defense of constructive eviction and a counterclaim for damages, both stemming from landlord's failure to repair the stairs leading down to the basement. The proof at trial showed that an inspector for the Village of Massapequa Park had determined that these stairs were not in compliance with the State code and that he had issued only a temporary certificate of occupancy limited to the main floor. A witness for tenant testified that tenant had intended to use the basement as retail selling space but was unable to do so- because of the violation, A major issue in the case was the question of which party was obligated to repair the stairs. With respect to this issue, it was shown that the lease, dated October 30, 1995, placed the obligation to make structural repairs upon landlord but that an amendment to the lease was executed after tenant had been in the premises for several months and after the premises had been inspected by tenant's architect and by the Village inspector. This amendment provided, ambiguously, that tenant was taking the premises “as is” except as provided in the lease, that tenant agreed that it is solely responsible for bringing the premises into compliance with applicable codes and that it would make no claims against landlord for any existing or future violations, but that landlord would be responsible for any “violations of record that existed prior to November, 1995.” The only testimony at trial as to the meaning of this agreement came from tenant's witness, who claimed that landlord's agents had agreed that landlord would remain responsible for structural repairs. Noting the inconsistencies in this amendment agreement, the District Court ruled that it was “unreasonable” to impose upon tenant the duty to make structural repairs and that the duty to repair the stairs remained upon landlord. Accordingly, the court awarded tenant a 50 percent abatement of rent commencing with the month of October 1996, the first month for which landlord had sought to recover rent, and directed that this abatement should continue so long as the violations were not corrected: It dismissed tenant's counterclaims without prejudice for failure of proof. Tenant alone has appealed, contending that it is entitled to a 100 percent abatement because the diminution in the value of the premises was so great and that the abatement should have been applied retroactively. In addition, tenant objects to that portion of the court's judgment, dated December 26, 1997, which stayed issuance of the warrant only through November 19, 1997, thus denying tenant an opportunity to stay issuance of the warrant by posting the amount of the judgment (RPAPL 751 [ID. We affirm the final judgment. It is evident that the District Court treated landlord's failure to repair the stairs as a defense to landlord's claim for rent and not as a counterclaim. For this reason, the court allowed tenant an abatement of the rent sought but not a retroactive abatement and dismissed the counterclaim without prejudice. We therefore begin by commenting

upon the question of whether landlord's failure to repair the stairs constituted a defense to landlord's claim for rent or a counterclaim, For the purpose of this discussion, we will assume that the duty to repair the stairs was upon landlord. However, in view of the result reached herein, we need not ultimately determine that issue. Traditionally, a breach by landlord of a covenant to repair has not been considered a defense to a claim for rent, but rather a basis for a counterclaim. The reason for this rule is said to be that the covenant to pay rent and the covenant to make repairs are independent obligations Thomson-Houston Elec. Co. v. Durant Land Improvement Co., 144 NY 34; SE Nichols, Inc. v. American Shopping Centers, 130 AD2d 855). In recent years, there have been mounting calls for reconsideration of this approach and for adoption of a rule which would consider the covenants to be dependent (e.g., 3A Corbin on Contracts §686; 6 Williston on Contracts 9890, M; Restatement Second of Property, Landlord & Tenant, 9§7. 1, 11. 1). Although courts in several other jurisdictions have heeded these calls (e.g., Richard Barton Enterprises v. Tsern, 928 P2d 368 [Utah]; Terry v. Gaslight Sg. Assoc, 182 Ariz 365, 897 P2d 667; Westrich v. McBride, 204 NJ Super 550,499 A2d 546; Paw Co., Inc. v. Bergman Knitting Mills. Inc., 283 Pa Super 443, 424 A2d 891), the New York courts have yet to adopt this position in commercial cases (but cf., 56-70 58th St. Holding Corp. v. Fedders-Quigan Corp., 5 NY2d 557 [three judges in dissent and one in concurrence indicate that a covenant by a landlord to obtain a certificate of occupancy and the covenant by the tenant to pay rent are dependent covenants]).1 Instead, the New York courts have proceeded incrementally by creating the fiction of a partial constructive eviction (e.g., KRU, Inc. v. 1000 Massapequa, 238 AD2d 314; Minjak Co. v. Randolph, 140 AD2d 245). This latter doctrine is of limited use, however, as demonstrated by this case, where, as will be shown, it is inapplicable. The constructive eviction defense is not applicable here because the proof showed that the condition complained of existed at the inception of the tenancy. The weight of authority is to the effect that where a tenant takes possession despite the existence of the condition complained of, no eviction takes place Webb & Knapp v. Churchill's Term. Rest., 2 AD2d 332; Carnegie Hall, Inc. v. Zysman, 238 App Div 515; O'Brien v. Smith, 13 NYS 408, affd 129 NY 620; Forshaw v. Hathaway, 112 Misc 12; but cf., Fifth Ave. Estates v. Scull, 42 Misc 2d 1052). Thus, if the traditional New York rule were to be applied here, it would follow that tenant did not make out a defense to landlord's claim for rent. It is, however, unnecessary for us to decide whether a breach by landlord of the covenant to repair should be recognized as a defense to a claim for rent inasmuch as landlord has not cross-appealed from the court's determination and inasmuch as tenant raised the breach issue by way of counterclaim. Moreover, it is our view that, in any event, tenant failed to adequately establish its claim by introducing competent proof of the diminution in rental value or of other damages sustained as a result of the failure to make the repairs. The measure of damages for a breach by landlord of the covenant to repair “is the difference in the rental value of the premises as they are and as they were to be ... (Thomson-Houston Elec. Co. v. Durant Land Improvement Co., 144 NY 34,47). Special

1 In the residential context, the covenants #ere made dependent by recognition of an implied warranty of

habitability (RPL 9235-b; Park West Mgt. Corp. v. Mitchell, 47 NY2d 316).

damages may be recovered, but not where, as here, they are unproven and speculative (Friedland v. Myers, 139 NY 432). Although it is no longer necessary to introduce expert testimony to establish the diminution in the value of residential -premises (RPL 235-b[3]; Park West Mat. Corn. v. Mitchell, 47 NY2d 316,329-330), such Proof is still required in the commercial context (see, 487 Elmwood v. Hassett, 107 AD2d 285; Electronic Corp. of Amer. v. Famous Realty, 87 NYS2d 169, affd 275 App Div 859; Lieberman v. Graf Realty Holding Co., 174 App Div 774; Berkowitz v. lorizzo, 106 Misc 489). In the absence of competent proof as to the diminution in value, we are unable to determine the amount of the diminution. Accordingly, we decline to increase the amount of the setoff awarded to tenant. The District Court's decision also directed that the abatement should continue prospectively. This was improper because the authority of the District Court is limited to adjudicating the dispute before it through the time of trial and prospective relief may not be ordered (UDCA 209(b]; Oberlander v. Taylor, NYLJ, April 8, 1997 (AT 9 & 10]). While we do not, in light of landlord's failure to cross-appeal, strike the direction, we note that an order granted by a court which lacks jurisdiction to issue the order is void (Hughes v. Curning, 165 NY 91; Matter of Stoddard v. Town Bd. of Town of Marilla, 52 AD2d 1091) With respect to the failure of the District Court to afford tenant an opportunity to obtain a stay pursuant to RPAPL 751(1), it is our view that a tenant should ordinarily be afforded such an opportunity. The evident purpose of this provision and of the predecessor statutes (CCP 2254; CPA 1435) is to afford the unsuccessful tenant a post judgment opportunity to avoid the forfeiture of his leasehold by tendering the amount of the judgment. Although the statute does not mandate that such an opportunity be afforded in every case, in light of the statute's remedial purpose (cf., Nestor v. McDowell, 81 NY2d 410,414) a proper exercise of discretion would require that a tenant normally be afforded such an opportunity. In the instant case, however, in as much as the warrant has issued, we leave tenant to its remedy of moving to vacate the warrant for good cause shown.

11. Cosmetics: No abatement lies for purely cosmetic items such as discoloured bathroom tile. Aaron Mgt. Co. v. Fractenberg, 14 HCR 175A, NYLJ 5/21/86, 14:4, HCR Serial #00005273 (AT 2 & 11)

Decision Appeal from final judgment dismissing landlord's petition and awarding the tenant the

sum of $900. Final judgment unanimously modified by vacating the monies awarded in favor of

tenant, and as so modified, affirmed without costs. The lower court's judgment in effect made the landlord responsible to replace the

entire bathroom floor where the tiles obtained by the landlord to repair a small area thereof were not aesthetically pleasing to the tenant. The landlord is under no such burden. Further, there was no basis to award attorney's fees to the tenant.

12. Defenses that do NOT lie to claims of abatement: (A) Special landlords: Neither the City, nor Receivers, nor Coops, nor 7A Administrators are exempt from abatements. All of these issues have been litigated. City City of NY v. Rodriguez, 11 HCR 4A, 117 Misc2d 986, 461 NYS2d 149, HCR Serial #00030167 (AT1 1983)

Decision Final judgment entered July 21, 1981 (Trussell) is unanimously reversed without costs, tenant's affirmative defense of breach of warranty of habitability (RPL §235-b) is reinstated and a trial is ordered. Landlord, The City of New York, initiated this nonpayment proceeding to recover rental arrears of $975, for the months of February through May 1981. The petition was subsequently amended to include additional rental arrears, bringing the aggregate amount of rent sought to $1,545. Tenant has admittedly withheld that amount of rent. As an affirmative defense to this proceeding tenant asserted a breach by landlord of the warranty of habitability. In that regard it is alleged in tenant's answer that the ceiling in the bathroom; the plumbing is defective; the toilet is broken; the bathroom tiles are loose; there are cracks in the kitchen walls; the refrigerator door doesn't close; the apartment is infested with roaches; and the wiring in the second bedroom is defective. While these allegations are sufficient to state an affirmative defense of breach of the warranty of habitability (Park West Management Company v. Mitchell, 47 NY 2d 317, cert. den. 444 U.S. 992; Goldner v. Doknovitch, 88 Misc2d 88 [AT 1]), the court below concluded that such an affirmative defense of breach of the warranty may not be asserted against The City of New York qua landlord, and thus summarily awarded final judgment in landlord's favor. More than a decade ago, even before the warranty of habitability was embodied in RPL §235-b (L. 1975, ch. 597, eff. Aug. 1, 1975; amd. L. 1976, ch. 837, eff. July 26, 1976), courts of this jurisdiction recognized that a landlord's breach of the warranty of habitability gives rise to an actionable claim which a tenant may assert as an independent cause of action or as an affirmative defense to a landlord's nonpayment proceeding (Amanuensis Ltd. v. Brown, 65 Misc2d 15; Jackson v. Rivera, 65 Misc2d 468). During the decade since the warranty's first application, and until the instant case, it appears that no court has specifically considered whether the City of New York, as an owner or residential housing stock, is subject to the warranty of habitability. Neither tenant nor landlord in this appeal refers to any such precedent, and we ourselves find none. The court below, in holding that the warranty of habitability may not be asserted against the City, does so "[p]ursuant to the reasoning set forth in Salzman v. Brown (67 Misc2d 101 [Civ. Kings, 1971])." In the Salzman case an administrator appointed pursuant to RPAPL, Article 7-A, initiated a summary nonpayment proceeding against a tenant who was recipient of public assistance. That tenant, through the Department of Social Services, which appeared on tenant's behalf as amicus curiae, interposed as a defense to landlord's nonpayment proceeding §143-b of the Social Services Law, commonly referred to as the Spiegel Law. The Spiegel Law provides that in any action or summary proceeding against a welfare recipient for nonpayment of rent, it shall be a valid defense to show existing violations in the building, which relate to conditions which are dangerous, hazardous or detrimental to life or health as the basis for nonpayment (Soc. Serv. Law, §143-b[5(a)]).

The Salzman court held that in a nonpayment proceeding maintained by an article 7-A administrator a defense under the Spiegel Law is unavailing because it would vitiate the very purpose of the law which permitted the court appointment of the administrator in order to remedy unsafe or unhealthy conditions. More specifically the Salzman court observed:...it is inconceivable that the Legislature intended that the Spiegel Law interposed as a defense against an administrator appointed pursuant to RPAPL article 7-A. The Spiegel Law, enacted in 1942, was aimed at landlords who have been exploiting tenants who are welfare recipients by failing to make necessary repairs and neglecting to provide necessary services (see Laws of 1962, Ch. 997, §1). In providing for an abatement of the rent of welfare tenants while hazardous violations exist, the thrust was against landlords who have monetary interests and who seek to realize profits by neglecting their buildings and failing to provide the tenants with services and repairs...Certainly an article 7-A administrator has no pecuniary interest in the rents, and the withholding of rents would be no inducement to him, other than to resign his appointment. If he were to be deprived of the rents he could make no repairs or improvements in the premises, and the whole purpose of article 7-A would be defeated in contravention of the legislative intent which brought it into being. We are not called upon here to review the efficacy of Salzman v. Brown, supra, and although certain of the attributes which the Salzman court imputes to article 7-A administrators may also be imputed to the City, it does not necessarily follow that the Legislature intended to exempt the City, in its capacity as residential landlord, from the scope of RPL §235-b. RPL §235-b provides, in part, that "[i]n every written or oral lease or rental agreement for residential premises the landlord or lessor shall be deemed to covenant and warrant that the premises so lease or rented...are fit for human habitation and for the uses reasonably intended by the parties and that the occupants of such premises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety." The language of the statute refers to "landlord" in the generic sense and thus does not exempt any class or category of landlord from its application. The legislature has on occasion exempted City-owned property from the operation of remedial tenant legislation. For example, rents in City-owned properties are not subject to the rent levels imposed by the City Rent Control Law or the Rent Stabilization Guidelines (City Rent Control Law §Y51-3.0e[2][f]1 Rent Stabilization Code §2[g][4]). In this context we deem the absence from RPL §235-b of an exemption for City-owned properties significant. The City, in its brief submitted to this court, states that it has taken title to the premises in question pursuant to Internal Revenue Tax Foreclosure Proceedings, after the prior owner defaulted in the payment of real estate taxes. Foreclosure may also be predicated upon a lien against premises by the City for moneys expended by the City pursuant to the Emergency Repair Program, whereby the City has, upon application of tenants, supplied fuel and repaired conditions in a residential building, which are immediately dangerous to life, health or safety of the tenants in the building. The City suggests that in either case, it generally takes title to buildings which have been sorely neglected or totally abandoned. Thus, far from seeking to make a profit from revenues produced by such buildings, the City indicates that those even are used to pay outstanding liens and to rehabilitate and maintain the premises to a point where the City may divest itself of the

operation and ownership of the premises. To that extent the City argues that it stands in the same position as an article 7-A administrator and that, in order to succeed in the restoration of these premises, it requires that all rents be paid, and that the tenants be foreclosed - albeit unfortunately, in view of the condition of the premises - from securing rent abatements pursuant to RPL §235-b. While we are sympathetic with the City's plight in having to assume responsibility for properties such as the one here at issue, we perceive no logic in requiring tenants of City-owned property to pay rent for services not received while recognizing the right of tenants of privately owned property to abate their rents under identical circumstances. Nor is the claim by the City that it is not in the business of making a profit from these premises persuasive. RPL §235-b affords no exemption to not-for-profit entities, and indeed this court only recently held that cooperative corporations, which clearly do not operate for profit, are obligated by the warranty of habitability (Suarez v. Rivercross, 107 Misc2d 135 [AT 1]; Note 55 St. John's L.R. 800 [1981]). Accordingly we conclude that tenants of City-owned residential properties are entitled to the protection afforded all other tenants by RPL §235-b.

Receiver Bankers Federal Savings, FSB v. 247 W. 11th St. Owners Corp., 19 HCR 345A, NYLJ 6/5/91, 22:6, HCR Serial #00004010 (Sup NY Evans)

Decision This is a foreclosure action in which this court appointed a receiver by order dated

April 30, 1990. That order included a direction to the tenants to pay rent to the receiver rather than to the owner of the premises, 247 West 11th Street, New York, New York (“Premises”). The April 1990 order was resettled on Oct. 26, 1990 to include language which the court appointed depository bank claimed was necessary for it to open the receivership account. The provision relevant to the duties of the receiver and tenants vis-a-vis each other remained the same in the resettled order.

The Premises is an apartment building which was erected in the late 1800’s and consists of approximately 20 residential units and a few commercial units. Apparently, the Premises suffers from various building code violations and is generally in a state of disrepair although certain tenants have made renovations to their apartments.

Prior to the commencement of the foreclosure proceeding, the tenants began to withhold payment of rent to the Landlord/ Owner (“Owner”) due to the owner’s persistent failure to make repairs and cure violations and to provide certain services to the tenants. This rent strike was not a court authorized strike pursuant to RPAPL article 7. However, a tenants’ association was organized to act as the member tenants’ representative. Not all residential tenants are members and none of the commercial tenants are members. It is not clear whether any or all rent was paid into an escrow account established for that purpose or whether the tenants simply retained the monies, individually.

The tenants were notified that this court had appointed a receiver and admit having received written demands for compliance with the court’s order on or about Oct. 17, 1990 (see, Affidavit of Robert J. Fahey submitted in Support of Contempt Motion, sworn to on Nov. 20, 1990 at para. 5 and Exhibits B and C and Affidavits of Tenants submitted in support of cross-motion). Despite the demand, they continued to withhold rent and refused to pay the receiver, with only relatively minor exception. The tenants’ association attempted to negotiate a resolution of the maintenance problems and violations from which the Premises suffered, with some abatement of rent, between and among the receiver, the management company appointed by the receiver, and the bank. However, these attempts at settlement of those issues failed.

The receiver now moves to punish the tenants for contempt. The residential tenants cross-move for dismissal of the entire action for lack of personal jurisdiction, for removal of the receiver, for an accounting by the receiver and for sanctions against the receiver. The commercial tenants cross-move for dismissal for lack of personal jurisdiction and for sanctions against the receiver.

Meanwhile, the Bank has moved to confirm the report of the referee, to amend the caption of the action, and for a judgment of foreclosure and sale. Defendants Andrew Lichenstein, Robert A. Calinoff, Ellen M. Calinoff and Dr. Kalmon Law cross-move to include a provision for payment of any surplus to them, as holders of the subordinate mortgage on the Premises, in any judgment of foreclosure and sale ultimately rendered by the court.

The receiver’s motion for contempt against the tenants is denied. The receiver’s motion is based on the tenants’ failure and refusal to attorn to him in accordance with this

court’s order despite the demand to comply. He alleges that this refusal interferes with his ability to fulfill the duties of his appointment.

Although it may be true that the practical consequence of the tenants’ rent strike is to severely limit the receiver’s ability to preserve and manage the Premises, the court finds that here, the tenants’ rent strike was appropriate in light of the alleged condition of the Premises. The court also finds that the described conditions, which include severely deteriorated exterior walls, parapets, coping and windows, crumbling masonry chimneys, a leaking roof, which has consequently damaged walls and/or collapsed ceilings in some apartments, excessive leaks in the gas supply lines, gas lines run in the public halls, and inadequate electrical supply to apartments, are sufficient to constitute a breach of the warranty of habitability (see, Affidavit of Stephen H. Palitz, Esq., submitted in support of residential tenants’ cross-motion, sworn to on Dec. 7, 1990 at Exhibits D, M and N. Neither the Bank nor the receiver deny that the conditions alleged by the tenants exist.

RPL §235-b(1) gives every residential tenant the right to expect that they “shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety.” The tenant is not obligated to pay rent when the premises are not in a habitable condition (see, Park West Management Corp. v. Mitchell, 47 NY2d 316, 327, 48 NYS2d 310, 316 [1979]). To effectuate the tenants’ statutory right to safe and decent housing, tenants may withhold rent, then interpose the breach of the warranty of habitability as a defense once payment of the rent sought (Whitby Corp. v. Schleisner, 117 Misc2d 794, 800, 459 NYS2d 203, 207 [Sup. Ct., NY Co., 1982] [Booth Glen, J.]). “Where a landlord’s failure to comply with the Multiple Dwelling Law or local building codes or to make necessary repairs goes beyond an individual’s tenant and her or his apartment, the purpose of 235-b is best served by all the affected tenants joining together and jointly exercising this right to withhold rent” (Id.).

This right to withhold rent has been upheld even when the tenants engage in the informs and associational withholding of rent rather than a rent strike conducted pursuant to RPAPL Article 7-A which involves the deposit of rent monies into court (see, Whitby Corp., 117 Misc2d at 796, n. 3, 459 NYS2d at 204 n. 3). It has been held that RPL §235-b “excludes no residential tenant and includes all persons and entities as ‘landlords’” (Dept. of Housing Preservation and Development of the City of New York v. Sartor, 109 AD2d 665, 666-667, 487 NYS2d 1, 2 [1st Dept., 1985]). The defense based on a failure to provide habitable premises has been made available against an administrator appointed pursuant to RPAPL article 7-A (Id. at 666, 487 NYS2d at 2). Although research has not revealed a case in this jurisdiction in which that defense has been explicitly extended to a receiver appointed in a foreclosure action, the holding in Department of Housing Preservation and Development of the City of New York v. Sartor, supra, warrants that such an extension be made now.

Therefore, the residential tenants were entitled to withhold rents from the receiver to attempt to effectuate their rights pursuant to RPL §235-b. This is true although a rent strike or abatement would reduce the funds available to the receiver for curing violations and making repairs (see, Matter of Schactman v. State Div. of Housing and Community Renewal, Office of Rent Administration, 143 AD2d 53, 56, 531, NYS2d 804, 806 [1st Dept., 1988], app denied, 73 NY2d 707, 540 NYS2d 238 [1989]; Department of Housing v. Sartor, 109 AD2d at 667, 487 NYS2d at 2-3). Abatement of rents places the receiver in “a Catch-22 situation reduced rentals will lead only to reduced services and, inevitably,

still further reductions in the rent. Yet, that is the law” (Lawrence v. Martin, 131 Misc2d 256, 260, 499 NYS2d 835, 839 [NYC Civil Court, NY Co., 1986] [Friedman, J.]).

The amount of the appropriate rent abatement must be determined. The court recognizes that certain tenants may be entitled to larger abatements than others depending on the extent of the disrepair or effect that a particular violation has on a particular apartment (see, Palitz Affidavit at Exhibit M). Therefore, the court directs that a hearing before a Judicial Hearing Officer be held, as expeditiously as possible, to report and recommend to the court the amount of abatement to which all residential tenants are entitled due to the violations and disrepair affecting the building exterior and common areas, as well as to determine the amount of any additional abatement to which a particular tenant may be entitled as a result of conditions existing in and affecting that tenant’s apartment.

Accordingly, the receiver’s motion for contempt against the residential tenants is denied.

Here, certain tenants use their apartments for commercial use and have also withheld rent. Apparently, this commercial use is in violation of the Certificate of Occupancy for the Premises (see, Tenants’ Memorandum of Law submitted in support of cross-motion at p. 2). However, the court will treat those units as commercial property, not residential property, based on the nature of the use.

The warranty of habitability has not been extended to commercial properly and commercial tenants remain liable for rent, without abatement, even under circumstances which would entitle a residential tenant to an abatement (see, Bomze v. Jaybee Photo Suppliers, Inc., 117 Misc2d 957, 958-959, 460 NYS2d 862, 863 [App. Term, 1st Dept., 1983]; Kachian v. Aronson, 123 Misc2d 843, 747, 475 NYS2d 214, 218 [NYC Civil Court, NY Co., 1984, Lehner, J.]). Therefore, the commercial tenants must pay the receiver the full amount of any rent in arrears and continue to pay rent to him from the full amount due under their leases. This is not a case in which the commercial uses are incidental to residential use of those particular apartments (see, Kachian, 123 Misc2d at 748, 475 NYS2d at 219;. However, the court in its own discretion will not impose contempt sanctions against the commercial tenants. Therefore, the receiver’s motion for contempt as against the commercial tenants is also denied.

The receiver also requests that the tenants be held in contempt based on their failure to obtain leave from this court to cross-move against him. It is true that the tenants were required to obtain this court’s permission before they cross-moved against the receiver (see, Copeland v. Salomon, 56 NY2d 222, 228, 451 NYS2d 682, 686 [1982]). Although the tenants failed to do this, the court is not required to, but may in its discretion, sanction the tenants for contempt (see, Id. at 229, 451 NYS2d at 687). Here, the tenants’ cross-motion against the receiver responds directly to the receiver’s motion against them for contempt and raises issues intertwined with the issues raised by the receiver. Therefore, the court declines the receiver’s invitation (see, Yanowitz v. Sanchez, NYLJ at p. 11, col. 1 [App. Term, 1st Dept., May 5, 1983]).

Tenants’ motion pursuant to CPLR 3211(a)(8) for dismissal of the action for lack of personal jurisdiction is denied. The tenants claim that the Bank’s discretion of the Tenants in the caption of this action as unknowns was improper and in violation of CPLR Sec. 1024. They allege that the Bank knew or should have known the actual identities of each tenant before it commenced its action because the Bank had access to the registry in

the outer, unlocked, vestibule of the Premises and/or the building registration form on file with the Department of Housing and Community Renewal.

The Bank alleges that it did not know the actual names of each of the tenants at the time it began its action. It claims that the only information it had received from the owner was a rent roll dated as of January 1988, which does not name the tenants and which indicates that by the time this action was commenced, certain of the leases had already expired (see, Affirmation of Arthur T. Walsh, Esq., dated Dec. 19, 1990, submitted in opposition to the tenants’ cross-motions [“Walsh Affirmation”], Exhibit A).

The court finds that the Bank did not know the identity of each tenant and/or occupant of the premises at the time this action was commenced and could not have determined the same with accuracy through reasonable efforts prior to actually effectuating service upon the occupant of each apartment. The registration form and building registry which tenants claim were available sources of this information may have contained stale, inaccurate information and may not have contained the names of occupants in possession who were not tenants but who might have claims to interpose in the action.

RPAPL Sec. 1311 requires that a mortgagee make “[e]very person having an estate or interest in possession, or otherwise,” including tenants, defendants in a mortgage foreclosure action when the interest of those parties is claimed to be “subject and subordinate to” the mortgagee’s lien. Any claim by an occupant in possession, but who may not actually be a tenant is extinguished only by making that occupant a defendant was well (see, Krochta v. Green, 121 Misc2d 471, 467 NYS2d 995, 997 [City Ct., Yonkers Ct., 1983], citing, Douglas v. Kohat, 196 AD 84,187, NYS 102 [2nd Dept., 1921]).

The purpose of joining these interested parties as defendants is to extinguish the rights of redemption of all those who have a subordinate interest in the properly and to vest complete title in the purchaser at the foreclosure sale (Polish National Alliance of Brooklyn, USA v. White Eagle Hall Co., Inc., 98 AD2d 400, 404, 470 NYS2d 642, 646-647 [2nd Dept., 1983]. A foreclosure sale is void as against an omitted party since that party is not bound by the judgment of foreclosure and his or her interests survive that judgment (see, Jorgensen v. Endicott Trust Co., 100 AD2d 647, 648, 473 NYS2d 275, 276 [3rd Dept., 1984]; Polish National, 98 AD2d at 406, 470 NYS2d at 648). Therefore, the ultimate purchaser at a foreclosure sale in which a party in interest was omitted may be relieved of his or her purchase via an action to set aside the sale or to reforeclose (see, Jorgensen, 100 AD2d at 648, 473 NYS2d at 276; RPAPL Sec. 1503).

Here, there is no claim that any tenant’s interest in the Premises is superior to that of the Bank and therefore each would have to be joined as a party defendant. In light of the mandate to join such parties contained In RPAPL Sec. 1311 and the likelihood that the finality of any foreclosure judgment must be jeopardized if even one of the tenants was omitted, the Bank’s designation of the tenants as unknowns is appropriate.

None of the tenants claim that service of process upon any of them was improper in any other manner. Therefore, both the residential and commercial tenants’ motion to dismiss the foreclosure action for lack of personal jurisdiction is denied. The two cases cited by the tenants are distinguishable since those cases were not decided in the context of foreclosure actions and the plaintiffs in those cases knew the identities of the defendants.

The residential tenants also cross-move for an order requiring the receiver to make a presentation of his accounts pursuant to CPLR 6404. That portion of the cross-motion is also denied.

This court’s order directs the receiver to, among other things, comply with RPAPL Sec. 6404. CPLR Sec. 6404 provides that a temporary receiver must keep “written accounts itemizing receipts and expenditures,” which “shall be open to inspection by any person having an apparent interest in the properly.” That section further provides that upon motion of “any persona having an apparent interest in the properly,” the court has the discretion to among other things, “require presentation of the temporary receiver’s accounts” (see, CPLR Sec. 6404).

CPLR Sec. 6404 also requires that notice of that motion must be served on the surety of the receiver’s bond and on each party to the action. Here service upon the surety was never effectuated and therefore their cross-motion pursuant to CPLR Sec. 6404 is defective. However, the court will consider the merits of this portion of their crossmotion in the interest of justice.

The receiver provides an informal account of receipts as of November 1990, totaling $9,265.07, in support of his motion for contempt against the tenants (see, Affidavit of Robert J. Fahey, Esq., sworn to on Nov. 20, 1990, in support of motion for contempt at Exhibit D). The receiver also provides a list of expenses as of December, 1990, totaling $2,514.65, which were incurred since the receivership account was activated on or about Dec. 5, 1990, at par. 8 and at Exhibit B annexed thereto. The court notes that each one of the expenditures listed was to remedy a violation or for the maintenance of the premises (Id.). The receiver provided a supplement to his initial informal accounting which indicates that as of April 22, 1991, the receiver had received a total of $12,188.42 and expended a total of $11,857.87 for building repairs and maintenance plus $53.12 for bank charges (see, Supplemental Affirmation and Accounting by Robert J. Fahey, dated April 22, 1991 and Exhibits annexed thereto.

Under the circumstances, no further obligation to account should be imposed upon the receiver. The court finds, based on the receives informal presentation of his receipts and expenses, that he has been keeping such an account in compliance with CPLR Sec. 6404 and this court’s order and there is nothing to indicate that he will not continue to do so.

The residential tenants also move for the removal of the receiver pursuant to CPLR 6405 based, mainly, on his alleged failure to address the myriad of violations and maintenance problems which plague the Premises. The tenants seem to focus on an incident which occurred in or about October, 1990, in which Con Edison “shut off” electricity to the common areas of the Premises and the water boiler for 2 ½ days pursuant to its October 1990 final “shutoff” notice (see, Affidavit of Steven Palitz sworn to on Dec. 7, 1990, at paras. 35 and 38).

Although the receiver may have been notified by the tenants that an electricity “shut off” was imminent in September or October 1990, at that time the receivership bank account had not yet been activated (see, Fahey Affirmation in Opposition at paras. 5, 6 and 7). That account was not activated until Dec. 5, 1990, (Id. at para. 7). Therefore, the receiver was without the practical means to make an appropriate disbursement to prevent the “shutoff” since he would not have been able to deposit any funds he may have already received by September or October 1990. The court notes that payments, which the receiver made expeditiously upon activation of the account included payment to Con

Edison for gas and electrical services (see, Fahey Affirmation in Opposition at para. 7 and Exhibit B annexed thereto.

The other grounds for removal advanced by the tenants are similarly untenable. Essentially, the receiver’s ability to function once the receivership account was activated was severely limited as a result of the tenants’ decision to withhold rents. Tenants estimate that it will cost approximately $39,000 to effectuate the necessary repairs (see, Palitz Affidavit at Exhibit D). However, to date the receiver has received approximately $12,200, of which he’s expended more than $11,800 in an effort to preserve the building. The receiver simply lacks the resources necessary to remedy the situation.

Accordingly, the tenants’ motion to remove the receiver is denied. The cross-motions by the residential tenants and commercial tenants to sanction the

receiver are also denied. Under the circumstances the receiver’s conduct was not frivolous as a matter of law. Therefore, no basis for imposing sanctions exist.

The Bank’s motion to confirm the referee’s report, to amend the caption and for a judgment of foreclosure and sale is granted.

The cross-motion by the subordinate mortgage holders to include a provision in the foreclosure judgment with respect to their entitlement to any surplus is also granted. Settle order.

Coop 31171 Owners Corp. v. Thach, 21 HCR 169B, NYLJ 4/21/93, 21:2, HCR Serial #00000495 (AT1)

Decision Order dated Nov. 19, 1991 (Pierre Turner, J.) modified by reinstating tenant’s

counterclaim for breach of the warranty of habitability and by remanding the matter to Civil Court for trial on that claim; as modified, order unanimously affirmed, without costs. In this nonpayment proceeding commenced by a cooperative corporation against tenant, a proprietary lessee, Civil Court granted summary judgment to petitioner upon tenant’s concession of maintenance arrears outstanding. Further, the court dismissed tenant’s counterclaim for breach of the warranty of habitability on the rationale that only tenant’s son, not tenant herself, had occupied the penthouse apartment premises during the period of the alleged breach. This result impresses too restrictive a view upon Real Property Law §235-b, a statute which has been broadly applied to include all tenants, including cooperators, “under its protective umbrella” (DHPD v. Sartor, 109 AD2d 665, 666; see, Suarez v. Rivercross Tenants’ Corp., 107 Misc2d 135). It is not disputed that tenant’s son is permitted to occupy the premises pursuant to the proprietary lease, and has done so without objection. The tenant, who remains obligated for the payment of maintenance, should not forfeit her statutory right to recover damages sustained as a consequence of a breach of the warranty where her authorized family member is in actual possession (Halkedis v. Two East End Ave. Apt. Corp., 161 AD2d 281), is not to the contrary, since the purchasers of the cooperative apartment in that case never resided in the premises. In the circumstances at hand, there is no warrant to depart from the established rule that the duty to pay rent-or, in this instance, monthly maintenance charges by a proprietary tenant, is coextensive with the landlord’s duty to maintain the premises in habitable condition (Park West Mgt. Corp. v. Mitchell, 47 NY2d 316, 329). Accordingly, the matter is remanded to the Civil Court for trial on tenant’s counterclaim. This constitutes the decision and order of the court.

7A HPD v. Sartor, 13 HCR 76B, 109 AD2d 665, 487 NYS2d 1, HCR Serial #00003217 (AD1 1985)

Decision Order of the Supreme Court, Appellate Term (Dudley, P.J., Hughes and D. Sullivan,

JJ.), entered Nov. 22, 1983, which modified a judgment of the Civil Court, Bronx County (Trussel, H.J.), entered June 14, 1982, is reversed, on the law and facts, to the extent appealed from, without costs, and the matter remanded to the Civil Court, Bronx County, for an assessment of damages in accordance with the decision herein.

Respondent tenant Sartor moved into the subject apartment house in the Bronx In Dec. 1980. At the time respondent moved in, an administrator appointed pursuant to Art. 7-A of the RPAPL was managing the building. In Dec. 1981 the petitioner City took ownership of the building.

In Jan. or Feb. 1981, there was a problem with water leaking from the tenant’s bathroom ceiling. Although an attempt was made to repair the leak, such repair did not last more than a few weeks. By June of 1981, the leak had caused the ceiling to crack and fall into the tub. The ongoing accumulation of debris in the bathtub prevented the tenant from using it and compelled her to travel to a friend’s home to bathe.

In Feb. 1982, the petitioners, Department of Housing Preservation and Development, City of NY, the landlord, and Andrews Housing Development Fund, the lessee, brought this summary proceeding in Civil Court, Bronx County, to recover the tenant Sartor’s apartment on the ground of nonpayment of rent. Respondent answered alleging, inter alia, a breach of the warranty of habitability by both the City and the 7-A Administrator.

After trial, the Civil Court entered a judgment in favor of the landlord for $783.75. Although the Court found a breach of the warranty of habitability, it granted no abatement of rent on the ground it was not available against the City or the 7-A Administrator. The Appellate Term modified this judgment by granting the tenant’s breach of warranty of habitability claim against the City of NY but affirmed the denial of any abatement against the Administrator.

To the extent that the Appellate Term denied relief against the 7-A Administrator, we reverse, and hold that the warranty of habitability statute, RPL §235-b, includes tenants paying rent to Administrators appointed under Article 7-A of the RPAPL.

Section 235-b, subdiv. 1, provides in pertinent part: In every written or oral lease or rental agreement for residential premises the landlord or lessor shall be deemed to covenant and warrant that the premises so leased or rented and all areas used in connection therewith in common with other tenants or residents are fit for human habitation and for the uses reasonably intended by the parties and that the occupants of such premises shall not be subjected to any conditions which would be dangerous, hazardous or deterimental to their life, health or safety.

The trend in case law has been to interpret this section to include all tenants under its protective umbrella. Thus, in Suarez v. Rivercross Tenants’ Corp., 107 Misc 2d 135, the Appellate Term, First Department, applied 235-b to co-operative apartments. In City of NY v. Rodriguez, 117 Misc 2d 986, the same Court applied 235-b to the City of NY, as landlord, as it did in the instant case. This Court in Park West Management Corp. v. Mitchell, 62 AD2 291, affd on other grds 47 NY2 316, held the statute to apply even to

leases signed prior to its enactment (id at p. 296). Finally, the Civil Court, in Geffner v. Phillips, 123 Misc 2d 127, applied 235-b to an Art. 7-A Administrator.

It is clear from the unequivocal language of the statute, and the broad application of its protective mantle by the cases which have applied it, that 235-b excludes no residential tenant and includes all persons and entities as “landlords.”

The Appellate Term noted that when at least one-third of the tenants have recourse to Article 7-A (RPAPL §770 they have “made an election.” Although such a waiver may be void (see Real Property Law §235-b, subdiv. 2), there is no need for us to resolve that issue at this time. Within the City of NY either one-third of the tenants or the City’s Department of Housing Preservation and Development can petition for the appointment of a 7-A Administrator and, here, HPD alone petitioned for such appointment. The respondent did not even move into the building until more than a year after the Administrator’s appointment.

The Appellate Term asserts in its decision that the Article 7-A Administrator “has no pecuniary interest in the rents.” However, the order appointing the Administrator herein authorized a fee of “5% of the monthly rents actually collected.” Thus, the Administrator has an incentive to make diligent efforts to repair any condition giving rise to a breach of warranty of habitability claim reducing the amount on which the fee is calculated.

The Appellate Term was concerned also that granting tenants a rent abatement against 7-A administrators would reduce the funds available to them to make repairs. However, this argument is equally valid for not allowing any abatement against the City qua landlord (cf. 50 Brooklyn Law Review, The Warranty of Habitability as Applied to NYC In Rem Housing: A Premature Promise, p 1103).

While superficially appealing, this position discriminates basically against lower-income tenants. It would, in effect force these tenants not only to subsidize the cost of their own housing (which appears fair) but also to pay for housing which they are not receiving. If creating a fund to upgrade the housing stock from the unabated rents of tenants is the desideratum (see 50 Brooklyn Law Review, The Warranty of Habitability as Applied to NYC In Rem Housing: A Premature Promise, supra) then the Legislature is the proper arena to effect such a public policy change. We are, however, bound by the plain language of §235-b which, as noted, includes all tenants.

Since the measure of damages herein against the 7-A Administrator may differ from that in a building not subject to 7-A (see Geffner v. Phillips, supra, at 130), and since the period of time in which there was an Administrator may have involved better (or worse) conditions in the subject apartment, we remand for an assessment of such damages.

All concur except Kupferman, J. who dissents and would affirm on the Opinion at Appellate Term. Note, however, that if an abatement is asserted as a counterclaim, as to Receivers and 7A Administrators, they can only be set offs of a rent claim. They cannot exceed the amount of rent the tenant is sued for.

(B) Waiver. The right to abatement in residential context is unwaivable. 303 Beverly Group, LLC v. Alster, 29 HCR 508B, 190 Misc2d 69, 735 NYS2d 908, HCR Serial #00012830 (AT 2 & 11 2001)

Decision Appeal by tenant from orders dated January 18, 2000, April 26, 2000 and June 6, 2000, deemed an appeal from a final judgment of the Civil Court, Kings County (G. Marton, J.), entered June 6, 2000, which awarded landlord possession and a money judgment of $2,150.26. Final judgment unanimously affirmed without costs. We deem the appeal from the orders to be from the final judgment entered June 6, 2000 (see, CPLR 5520[c]). The right of direct appeal from the orders terminated with the entry of the judgment (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on appeal from said orders are brought up for review and have been considered on the appeal from the judgment (CPLR 5501[a][1]). In this nonpayment proceeding, tenant asserted breach of the warranty of habitability as an affirmative defense. The parties thereafter entered into a "stipulation in settlement of issues" providing in pertinent part that the landlord "inspect and repair and replace as required by law: a) paint apt ... (b) leak in bedroom ceiling (c) leak in living room wall ... (f) polyurethane living room and dining room floors." Real Property Law §235-b provides that "any agreement by a lessee or tenant of a dwelling waiving or modifying his rights as set forth in this section shall be void as contrary to public policy" The entry into the court ordered stipulation of settlement, however, operated as an accord and satisfaction, precluding tenant from recovery of damages pertaining to any breach of the warranty of habitability occurring prior to the execution of the settlement agreement (see, Couri v. Westchester Country Club, 186 AD2d 712, 714715). Accordingly, tenant's claim for money damages in the sum of $450, representing the alleged cost of moving the furniture in his apartment to enable landlord's performance of repairs under the stipulation, and other relief, to the extent that it relies on an alleged breach of warranty preceding the date of the settlement agreement, is meritless. Denial of tenant's claim for money damages was proper for the additional reason that consequential damages are not recoverable for the breach of the warranty of habitability (Bay Park One Co. v. Crosby, 109 Misc2d 47; cf., Couri v. Westchester Country Club, supra, at 715 [damage to personal property is not recoverable under Real Property Law §235-b]; see also, Mastrangelo v. Five Riverside Corp., 262 AD2d 218; Elkman v. Southgate Owners Corp., 233 AD2d 104). The court, moreover, cannot be said to have improvidently exercised its discretion, under the circumstances presented, in denying tenant's request that landlord move the furniture, which in effect would impose upon the landlord the obligation and/or costs of moving the furniture, as part of its duties to do the repairs. Nor could the court read into the stipulation obligations that are not provided for therein. With regard to tenant's contention that landlord had moved the furniture in the past, and was therefore presently responsible for moving it to make the necessary repairs, the court properly concluded on the motion papers that this was an accommodation that did not create a duty on the part of the landlord to continue to assume such obligation thereafter. The tenant's remaining contentions are unpreserved for appellate review or without merit.

(C) Fact that condition is not a violation. In order to qualify for an abatement, a defect which threatens life health or safety need not be a violation, much less a reported violation. Park West Mgt. Corp. v. Mitchell, 47 NY2d 316, 391 NE2d 1288, 418 NYS2d 310, TLC Abatements 1, TLC Serial #0001 (Ct of Appeals 1979)

Commentary Park West is the leading decision on the law of abatements, or as it is more formally known, the warranty of habitability. Most landlord tenant practitioners have the occasion to refer to it, or at least to its basic principles. However, few have read it. If more did, they would be surprised to see what it does and does not say. While it is clear that the case affirms the proposition that the obligation to pay rent is linked to the landlord's actual provision of decent housing, it is equally clear that “The warranty of habitability was not legislatively engrafted into residential leases for the purpose of rendering landlords absolute insurers of services which do not affect habitability.” That is to say that purely cosmetic matters will certainly not give rise to an abatement. On the other hand, “fault” is not a factor. When the issue is indeed habitability, the fact that the landlord had no control over the condition is irrelevant. However, in computing the damages mitigating steps that the landlord takes are part of the calculation. One of the least known holdings of the case is that “a simple finding that conditions on the lease premises are in violation of an applicable housing code does not necessarily constitute automatic breach of the warranty. In some instances, it may be that the code violation is de minimis or has no impact upon habitability. Thus, once a code violation has been shown, the parties must come forward with evidence concerning the extensiveness of the breach, the manner in which it impacted upon the health, safety or welfare of the tenants and the measures taken by the landlord to alleviate the violation.” While this will obviously give rise to more arguments than answers, it seems clear that the arguments of the most rabid tenant activists notwithstanding, failure to post a sign telling where the key to the boiler room is located cannot be shown to have actual impact on tenant safety, at least where the building is well staffed. The flip side of this coin under the case is that just because something is not a violation does not mean that it does not adversely affect the warranty. In the City of New York where every hazard is some kind of violation, this doctrine should be read, that just because no violation has been posted for the item does not mean that the warranty has not been violated. The court addresses the issue of damages. It is clear in its vision that abatements will normally be a percentage of the rent. However, in the case law that has developed under Park West, it is typically a flat dollar amount, or some percentage of the lease like 47.3% which is an ill masked flat dollar amount. However, it would seem that Park West is satisfied so long as the damages award is capped at the lease rental amount.

Decision Chief Judge Cooke. Under the traditional common law principles governing the landlord tenant relationship, a lease was regarded as a conveyance of an estate for a specified term and thus as a transfer of real property. Consequently, the duty the law imposed upon the lessor was satisfied when the legal right of possession was delivered to the lessee. The lessor impliedly warranted only the continued quiet enjoyment of the premises by the

lessee. This covenant of quiet enjoyment was the only obligation imposed upon the landlord which was interdependent with the lessee's covenant to pay rent. As long as the undisturbed right to possession of the premises remained in the tenant, regardless of the condition of the premises, the duty to pay rent remained unaffected. Because the common law of leasehold interests developed in rural, agrarian England, the right to possession of the land itself was considered the essential part of the bargain; structures upon the land were deemed incidental. Thus, notwithstanding that the building may have constituted the substantial part of the tenant's consideration for entering into the lease, its destruction did not suspend his duty to pay the entire rent or afford him the right to rescind the lease (see, 2 Powell, Real Property, par 233 et seq). Indeed, even if the landlord had expressly covenanted to repair structures on the demised premises, that promise was considered ancillary to the tenant's obligation to pay rent. Hence, the failure of the lessor to perform the obligations imposed by his promise to repair gave the lessee only the right to maintain an action for damages; it did not vest in him a defense to an action grounded upon nonperformance of his covenant to pay rent (1 American Law of Property [Casner ed], §3.79). As society slowly moved away from an agrarian economy, the needs and expectations of tenants underwent a marked change. No longer was the right of bare possession the vital part of the parties' bargain. The urban tenant seeks shelter and the services necessarily appurtenant thereto - heat, light, water, sanitation and maintenance. Unfortunately, the early attempts of the common law to adapt to the changes encompassed by this societal transition and to mitigate the severity of the rule holding that the tenant's covenant to pay rent was independent of all but the most basic of the landlord's obligations proved less than satisfactory. The harshness of the common law rule was mitigated to a degree by decisions holding that performance of a tenant's covenant to pay rent was excused when the premises were destroyed through no fault of his own (e.g., Graves v. Berdan, 26 NY 498, 501). Subsequent judicial holdings expanded the scope of the landlord's covenant of quiet enjoyment to include a duty to refrain from any act or omission which would render the premises unusable by the tenant (e.g., Tallman v. Murphy, 120 NY 345, 351-352). Again, however, development of this theory of constructive eviction did not meet the needs of tenants in a society rapidly undergoing urbanization and, as a practical matter, was of no aid in helping them obtain essential services. It simply afforded the tenant the option to abandon the premises and cease paying rent if the failure of services was sufficiently severe. While the constructive eviction principle mollified the rigors of the common law to some extent, it was fraught with uncertainty, for the reasonableness of the tenant's action was subject to the vicissitudes of judicial review in an action by the landlord. If the condition of the dwelling was later determined not to have justified vacation of the premises, the tenant remained liable for unpaid rent. Further, rescission of the lease and abandonment of the premises did not spur landlords into making necessary repairs in locales in which the demand for housing greatly exceeded its supply and compelled tenants living in uninhabitable premises to undergo the expense of locating new premises and moving their belongings. Thus, since the common law imposed no implied service obligations on the landlord, maintenance and other essential services often were never performed, especially in low income neighborhoods. These early attempts presaged a distinct trend among courts and legislatures toward characterizing a lease of residential property as a contract containing an implied

warranty of habitability interdependent with the covenant to pay rent (e.g., Pines v. Perssion, 14 Wis 2d 590; Brown v. Southall Realty Co., 237 A2d 834 [DC]). A number of factors mandated departure from the antiquated common-law rules governing the modern landlord tenant relationship. The modern day tenant, unlike his medieval counterpart, is primarily interested in shelter and shelter related services. He is usually not competent to perform maintenance chores, even assuming ability to gain access to the necessary equipment and to areas within the exclusive control of the landlord (see, Javins v First Nat. Realty Corp., 428 F2d 1071, 1077-1078, cert den 400 US 925). Since a lease is more akin to a purchase of shelter and services rather than a conveyance of an estate, the law of sales, with its implied warranty of fitness (Uniform Commercial Code, § 2-314) provides a ready analogy that is better suited than the outdated law of property to determine the respective obligations of landlord and tenant (Green v. Superior Ct., 10 Cal 3d 616, 626-627). The transformation of the nature of the housing market occasioned by rapid urbanization and population growth was further impetus for the change. Well documented shortages of low and middle income housing in many of our urban centers has placed landlords in a vastly superior bargaining position, leaving tenants virtually powerless to compel the performance of essential services. Because there is but a minimal threat of vacancies, the landlord has little incentive to voluntarily make repairs or ensure the performance of essential services (see, Boston Housing Auth. v. Hemingway, 363 Mass 184, 197-198; Javins v. First Nat. Realty Corp., 428 F2d 1071, 1079-1081, supra;). While it is true that many municipalities have enacted housing codes setting minimum safety and sanitation standards, historically those codes could be enforced only by municipal authorities (Davar Holdings v. Cohen, 280 NY 828, but see, L 1977, ch 849, § 13). In short, until development of the warranty of habitability in residential leases, the contemporary tenant possessed few private remedies and little real power, under either the common law or modern housing codes, to compel his landlord to make necessary repairs or provide essential services. Initially by judicial decision (e.g., Tonetti v. Penati, 48 AD2d 25; Jackson v. Rivera, 65 Misc2d 468; Morbeth Realty Corp. v. Velez, 73 Misc2d 996; Steinberg v. Carreras, 74 Misc2d 32) and ultimately by legislative enactment in August, 1975, the obsolete doctrine of the lease as a conveyance of land was discarded. Codifying existing case law, the enactment of section 235-b of the Real Property Law (L 1975, ch 597, as amd), placed “the tenant in parity legally with the landlord” (1975 Sen J 7766-7776 [remarks of Senator Barclay]). A residential lease is now effectively deemed a sale of shelter and services by the landlord who impliedly warrants: first, that the premises are fit for human habitation; second, that the condition of the premises is in accord with the uses reasonably intended by the parties; and, third, that the tenants are not subjected to any conditions endangering or detrimental to their life, health or safety[8].

[8] The statute provides: "1. In every written or oral lease or rental agreement for residential premises the landlord or lessor shall be deemed to covenant and warrant that the premises so leased or rented and all areas used in connection therewith in common with other tenants or residents are fit for human habitation and for the uses reasonably intended by the parties and that the occupants of such premises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety. When

Petitioner is the owner of Park West Village, an apartment complex comprised of seven highrise buildings on the Upper West Side of Manhattan. For a 17 day period in May 1976, petitioner's entire maintenance and janitorial staff did not report to work due to a strike by members of Employees' Union Local 32-B. As a result of the strike, the tenants of Park West Village suffered extensive service interruptions which prompted some of them to withhold rent for the period encompassed by the strike. Petitioner commenced this summary nonpayment proceeding in the Civil Court of the City of New York. Respondent raised the affirmative defense that, as a result of the strike, petitioner had not provided essential services and had allowed conditions dangerous to the health of tenants to exist on the premises, constituting a breach of its implied warranty of habitability. By stipulation, the parties agreed that the decision rendered in the instant proceeding would bind some 400 tenants of Park West Village similarly situated. The parties further stipulated that in lieu of calling witnesses, they would submit written statements describing the extent and effect of the service interruptions caused by the strike. Hence, there is presented only the legal question of whether the conditions existing at Park West Village throughout the duration of the strike constituted a breach of the implied warranty of habitability. During the strike, the entire complement of porters and handymen at the complex - some two thirds of the entire work force - did not report to work. All of the incinerators were wired shut, compelling tenants to dispose of refuse at the curbs in paper bags supplied by the landlord. Because employees of the New York Sanitation Department refused to cross the striking employees' picket lines, uncollected trash piled up to the height of the first floor windows. Exposure of the accumulated garbage to the elements caused it to fester and exude noxious odors, eventually necessitating the declaration of health emergency at the complex by the New York City Department of Health. Regular exterminating service was not performed which, together with the accumulated garbage, created conditions in which rats, roaches and vermin flourished. Routine maintenance service was not performed, common areas remained uncleaned and sporadic interruptions of other services plagued the development. Civil Court determined that the conditions at the complex constituted a breach of the implied warranty of habitability and found that the loss in rental value of the apartments sustained by the tenants justified a reduction of 10% in their June rent bill. Both the Appellate Term and the Appellate Division affirmed, the latter court granting petitioner leave to appeal to this court. Petitioner maintains, and rightfully so, that a landlord is not a guarantor of every amenity customarily rendered in the landlord tenant relationship. The warranty of habitability was not legislatively engrafted into residential leases for the purpose of rendering landlords absolute insurers of services which do not affect habitability. Rather section 235-b of the Real Property Law was designed to give rise to an implied promise on the part of the landlord that both the demised premises and the areas within the

any such condition has been caused by the misconduct of the tenant or lessee or persons under his direction or control, it shall not constitute a breach of such covenants and warranties. "2. Any agreement by a lessee or tenant of a dwelling waiving or modifying his rights as set forth in this section shall be void as contrary to public policy. "3. In determining the amount of damages sustained by a tenant as a result of a breach of the warranty set forth in this section, the court need not require any expert testimony."

landlord's control are fit for human occupation at the inception of the tenancy and that they will remain so throughout the lease term. The scope of the warranty includes, of course, conditions caused by both latent and patent defects existing at the inception of and throughout the tenancy. However, as the statute places an unqualified obligation on the landlord to keep the premises habitable, conditions occasioned by ordinary deterioration, work stoppages by employees, acts of third parties or natural disaster are within the scope of the warranty as well (cf., Uniform Residential Landlord and Tenant Act, § 2.104). Inasmuch as the landlord is vested with the ultimate control and responsibility for the building, it is he who has a corresponding nondelegable and nonwaivable duty to maintain it. The obligation of the tenant to pay rent is dependent upon the landlord's satisfactory maintenance of the premises in habitable condition. Naturally, it is a patent impossibility to attempt to document every instance in which the warranty of habitability could be breached. Each case must, of course, turn on its own peculiar facts. However, the standards of habitability set forth in local housing codes will often be of help in resolution of this question. Substantial violation of a housing, building or sanitation code provides a bright line standard capable of uniform application and, accordingly, constitutes prima facie evidence that the premises are not in habitable condition. However, a simple finding that conditions on the lease premises are in violation of an applicable housing code does not necessarily constitute automatic breach of the warranty. In some instances, it may be that the code violation is de minimis or has no impact upon habitability. Thus, once a code violation has been shown, the parties must come forward with evidence concerning the extensiveness of the breach, the manner in which it impacted upon the health, safety or welfare of the tenants and the measures taken by the landlord to alleviate the violation (see, Javins v. First Nat. Realty Co., 428 F2d 1071, 1082, supra; Jack Spring, Inc. v. Little, 50 Ill 2d 351, 366; King v. Moorehead, 495 SW2d 65, 76 [Mo]; cf. Mease v. Fox, 200 NW2d 791, 796-797 [Iowa]). But, while certainly a factor in the measurement of the landlord's obligation, violation of a housing code or sanitary regulation is not the exclusive determinant of whether there has been a breach. Housing codes do not provide a complete delineation of the landlord's obligation, but rather serve as a starting point in that determination by establishing minimal standards that all housing must meet (see, Boston Housing Auth. v. Hemingway, 363 Mass 184, 200-201, n 16, supra). In some localities, comprehensive housing, building or sanitation codes may not have been enacted; in others, their provisions may not address the particular condition claimed to render the premises uninhabitable. Threats to the health and safety of the tenant - not merely violations of the codes - determines the reach of the warranty of habitability. A residential lease is essentially a sale of shelter and necessarily encompasses those services which render the premises suitable for the purpose for which they are leased. To be sure, absent an express agreement to the contrary, a landlord is not required to ensure that the premises are in perfect or even aesthetically pleasing condition; he does warrant, however, that there are no conditions that materially affect the health and safety of tenants. For example, no one will dispute that health and safety are adversely affected by insect or rodent infestation, insufficient heat and plumbing facilities, significantly dangerous electrical outlets or wiring, inadequate sanitation facilities or similar services which constitute the essence of the modern dwelling unit. If, in the eyes of a reasonable person, defects in the dwelling deprive the tenant of those

essential functions which a residence is expected to provide, a breach of the implied warrant of habitability has occurred. Under the facts presented here, respondents have proven that petitioner breached its implied warranty of habitability. As a result of the strike, essential services bearing directly on the health and safety of the tenants were curtailed, if not eliminated. Not only were there numerous violations of housing and sanitation codes (e.g., Administrative Code of City of New York, §§ D26-11.01, D26-11.03, D26-11.05, D26-13.03, D26-14.03, D26- 22.03), but conditions of the premises were serious enough to necessitate the declaration of a health emergency. In light of these factors, it ill behooves petitioner to maintain that the tenants suffered only a trifling inconvenience. Rather, the failure of petitioner to provide adequate sanitation removal, janitorial and maintenance services materially impacted upon the health and safety of the tenants and permitted them an abatement in their contracted - for rent.1 Problematical in these cases is the method of ascertaining damages occasioned by the landlord's breach. That damages are not susceptible to precise determination does not insulate the landlord from liability (Green v. Superior Ct., 10 Cal 3d 616, 638-639, supra; see, Matter of Rothko, 43 NY2d 305, 322- 323; Wakeman v. Wheeler & Wilson Mfg. Co., 101 NY 205, 209). Inasmuch as the duty of the tenant to pay rent is coextensive with the landlord's duty to maintain the premises in habitable condition, the proper measure of damages for breach of the warranty is the difference between the fair market value of the premises if they had been as warranted, as measured by the rent reserved under the lease, and the value of the premises during the period of the breach. The award may take the form of a sum of money awarded the tenant in a plenary action or a percentage reduction of the contracted - for rent as a setoff in summary nonpayment proceeding in which the tenant counterclaims or pleads as a defense breach by the landlord of his duty to maintain the premises in habitable condition. We do not comment upon the availability of other remedies not implicated under the facts presented here. In ascertaining damages, the finder of fact must weigh the severity of the violation and duration of the conditions giving rise to the breach as well as the effectiveness of steps taken by the landlord to abate those conditions. Since both sides will ordinarily be intimately familiar with the conditions of the premises both before and after the breach, they are competent to give their opinion as to the diminution in value occasioned by the breach (Teerpenning v. Corn Exch. Ins. Co., 43 NY 279, 282; Richardson, Evidence [10th ed], § 364, subd n). Indeed, the Legislature has instructed that in ascertaining the diminished market value of these dwellings, expert testimony is not required (Real Property Law, § 235-b, subd 3). The record here amply supports the 10% reduction in rent ordered by Civil Court. Given the severity of the conditions existing on the premises during the strike and the feeble attempts by petitioner to alleviate the dangers to the health and safety of the tenants, there is no basis for disturbing the award. Accordingly, the order of the Appellate Division should be affirmed, with costs. Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur with Chief Judge Cooke. Order affirmed.

1 It is noted that the statute we construe today speaks only of residential property used for such a purpose.

CIVIL COURT OF THE CITY OF NEW YORK COUNTY OF NEW YORK: HOUSING PART -------------------------------------------------------------X XXXX XXXXX d/b/a XX XXXXXXXX Index No.:

L & T 10573/06 Petitioner-Landlord, -against- XXXXXXXX XXXXXX XX XXXXX XXXXX, APT. XX NEW YORK, NEW YORK 100XX Respondent(s)-Tenant(s), -------------------------------------------------------------X

TRIAL MEMORANDUM OF LAW

ADAM LEITMAN BAILEY, P.C. On the brief:

Adam Leitman Bailey Dov Treiman

Attorneys for Petitioner 26 Broadway, 21st Floor New York, NY 10004

212 825-0365

CONTENTS

STATEMENT OF FACTS................................................................................................2 POINTS RAISED POINT I ..............................................................................................................................4 WHERE A TENANT DENIES ACCESS, NO ABATEMENT LIES

POINT II.............................................................................................................................5 WHEN A TENANT SEEKS AN ABATEMENT, THE TENANT CANNOT

SIT IDLY BY BUT MUST DEMONSTRATE A HISTORY OF PRO-ACTIVELY

AND UNSUCCESSFULLY SEEKING AND COOPERATING IN THE

LANDLORD’S CURE OF THE PROBLEM

POINT III ...........................................................................................................................6 ORDINARY HOUSEHOLD NOISES FROM NEIGHBORS DOES NOT VIOLATE

THE WARRANTY OF HABITABILITY

POINT IV ...........................................................................................................................7 SO LONG AS THE MULTIPLE DWELLING REGISTRATION ACTUALLY

PROVEN AT TRIAL IS VALID, PREVIOUS INFIRMITIES IN THE

MULTIPLE DWELLING REGISTRATION OR THE PLEADING OF IT ARE

NO BAR TO JUDGMENT

CONCLUSION ..................................................................................................................9 PETITIONER SHOULD BE GRANTED JUDGMENT IN FULL.

STATEMENT OF FACTS

The following timeline summarizes the proof presented at trial regarding the

problems with exterminating the rodents at the subject premises:

10/17/06 Complaint letter by XXX to XXXX of mice sightings outside and around building (one dead, one alive) and of the 10/10/06 and 10/17/06 sighting of a live mouse inside her apartment

10/19/06 XXXX XXX and Exterminator attempted to gain access

Access denied

10/23/06 Terminate Control inspected apartment at XXXX’

request 10/25/06 - XXX XXX and Exterminator attempted to gain access Access denied 10/26/06 Terminate Control serviced apartment at XXX’s

request

10/27/06 Letter from XXXX complaining of vermin 11/2/06 - XXXl XXXXX and Exterminator attempted to gain

access Access denied

11/8/06 Letter from XXX to XXX stating exterminator has visited building and was denied access, informing XXXXX of dates exterminator inspects/exterminates building

11/29/06 XXX (XXXX’S Exterminator) inspected and serviced apartment

Apartment serviced

12/2/06 Rent demand sent to XXXX for rent due and owing for November and December 2006

12/13/06 Petition 1/3/07 Answer received from tenant asserting withholding of

rent due to rodents and repairs needed

1/15/07 XXXX XXXX visited XXXX’ apartment and made repairs—sealed and repaired all cracks in the floor, baseboard and front door and the hole under the kitchen sink and radiator. No evidence of mouse droppings seen.

Apartment serviced

1/21/07 Email from XXX re. repairs effectuated by XXXX XXXXX

1/22/07 Letter from XXXX to XXXX re. repairs made, informing her of further minor repairs to be made

Notably, although the tenant claims to have filed complaints with the Department

of Housing Preservation and Development of the City of New York, no violations have

been issued against the building for rodents.

The building maintains a conspicuous posting of contact information for the

exterminator the landlord has on contract. This contact information includes both

telephone and email listings. The proof elicited at trial demonstrated that the tenant never

availed herself of the opportunity to contact the exterminator directly to set up a special

appointment. However, the proof at trial also demonstrated that the tenant does have

email capability and could therefore rapidly contact the exterminator and have an

electronic record of such contact had it been made. These opportunities for exterminator

services are in addition to the regularly posted regularly available extermination on the

third Thursday of every month.

Further, it is apparent that the landlord’s actions to address the issue were prompt.

The first failed attempt at gaining access for extermination was a mere two days after the

making of a complaint by the tenant.

Although the tenant claims that problems with rodents are the reasons for

withholding the rent, the months of rent actually withheld include those months after her

apartment was serviced and extermination services were successfully provided to her.

This coupled with the fact that there were three occasions on which the tenant denied

access demonstrates that the rodent “issue” is not an issue at all, but is feigned.

Tenant admitted to withholding all the rents sued for.

POINT I WHERE A TENANT DENIES ACCESS, NO ABATEMENT LIES

The law in New York is clear that mere defects in a tenant’s apartment do not

give a tenant a defense to the payment of rent unless and until the landlord is given both

notice of the condition and a reasonable opportunity to cure the problem. Continental

Gardens Apt. Corp. v. Fardi, 29 HCR 519B, NYLJ 11/01/01, 23:1, HCR Serial

#00012841 (AT 2 & 11 Aronin; Patterson, Golia).

Where the tenant denies access for the purpose of curing the defects, no

abatement of rent lies. Coleman v. Baron, 11 HCR 216A, NYLJ 12/6/83, 6:1, HCR

Serial #00007024 (AT1 Dudley; Hughes, Sullivan); 56 MacDougal St. Co. v. Miller, 18

HCR 213C, NYLJ 4/24/90, 22:3, HCR Serial #00004847 (AT1 Ostrau; Sandifer,

McCooe); Woodner v. Fenton, 20 HCR 392B, NYLJ 6/25/92, 25:5, (AT1 Ostrau;

Riccobono, McCooe); Sickle Mgt. Corp. v. Roque, 22 HCR 534A, NYLJ 9/16/94, 25:1,

HCR Serial #00001429 (AT1 Ostrau; Miller, Glen); 330 3rd Ave. Owners Corp. v. Valli,

22 HCR 664C, NYLJ 11/22/95, 25:5, HCR Serial #00007219 (AT1 Miller; McCooe,

Glen); Canada Leasing Corp. v. Janeill, 26 HCR 266A, NYLJ 5/4/98, 33:1 (AT 2 & 11)

HCR Serial #00009606; Callender v. Titus, 32 HCR 373C, 4 Misc3d 126(A), 791 NYS2d

868, NYLJ 6/11/04, 31:1 & 6/18/04, 25:2, HCR Serial #00014369 (AT 2 & 11 Pesce;

Aronin, Patterson).

Where there is a denial of access, a landlord may even be excused from effecting

a cure of the condition altogether. Anvil Co. v. Itenberg, 18 HCR 314A, NYLJ 6/18/90,

26:4, HCR Serial #00004483 (AT1 Ostrau; Sandifer, McCooe). Where there is a

repeated pattern of denial of access, the Court may properly decline to schedule an

abatement hearing at all. 2326 Grand Assn. v. Moran, 26 HCR 287A, 176 Misc2d 787,

673 NYS2d 847, NYLJ 5/13/98, 29:5, HCR Serial #00009623 (Civ Bx Fiorella).

POINT II WHEN A TENANT SEEKS AN ABATEMENT, THE TENANT CANNOT

SIT IDLY BY BUT MUST DEMONSTRATE A HISTORY OF

PRO-ACTIVELY AND UNSUCCESSFULLY SEEKING

AND COOPERATING IN THE LANDLORD’S CURE OF THE PROBLEM

As demonstrated by the factual recitation in this Memorandum, the tenant had

repeated opportunities to seek extermination directly from the landlord’s contract

exterminator. There were posted both telephone numbers and email addresses. There

were regularly scheduled visits in the building. Yet the tenant was more anxious to

accumulate her rent arrears than to make the minimal effort to avail herself of the

services which were placed at her at will disposal.

This is in direct conflict with a tenant’s obligation to be pro-active in cooperating

with a landlord’s efforts to cure a perceived problem in an apartment, Frank v. Park

Summit Realty Corp, 17 HCR 365A, NYLJ 10/4/89, 22:2, HCR Serial #00006337 (Sup

NY Baer); West 122nd St. Assocs., LP v. Gibson, 32 HCR 786A, 5 Misc3d 137(A), 799

NYS2d 165, NYLJ 12/13/04, 28:1, HCR Serial #00014663 (AT1 Suarez; McCooe,

Davis) even if the tenant does not approve of the manner of the cure.1 Winston Churchill

Owners Corp. v. Churchill Operating Corp., 21 HCR 214C, 193 AD2d 396, 597 NYS2d

62, NYLJ 5/10/93, 26:3, HCR Serial #00000531 (AD1 Carro; Ellerin, Wallach, Kassal,

Rubin).

POINT III ORDINARY HOUSEHOLD NOISES FROM NEIGHBORS

DOES NOT VIOLATE THE WARRANTY OF HABITABILITY

While it is established that under truly extraordinary circumstances, extreme

levels of noise can lead to a breach of the warranty of habitability such as to justify a rent

abatement, the dominant view of the law is summed up in the classic phrase, “[I]n this

day in our large cities it is fruitless to expect the solitude of the sylvan glen.” Louisiana

Leasing Company v Sokolow, 48 Misc2d 1014 (Civ Qns, 1966).

Ordinary neighborly household noises simply do not rise to the level of

compensable injury for a tenant in the City of New York. 320 Realty Assoc. v. Ellis, 27

HCR 672A, n.o.r. Decision dated May15, 1996 under Index #88230/95 (Civ Kings-

Finkelstein) HCR Serial #00001616; Grammer v. Turits, 28 HCR 285A, 271 AD2d 644,

706 NYS2d 453, NYLJ 5/1/00, 30:4, HCR Serial #00011896 (AD2 Santucci; Altman,

Friedmann, McGinity) HCR Serial #0011896; Bethune Realty Co. v. Adams, 30 HCR 1 There is no claim by the tenant that there was anything wrong in the manner in which the landlord sought to cure the situation in this case. The tenant merely arbitrarily refused access and then refused payment, neither refusal with any genuine claim of justification.

477B, NYLJ 8/20/02, 18:2, HCR Serial #00013326 (AT1 Suarez; Davis, Schoenfeld). In

order to justify any abatement of rent, the noise has to be so bad that it deprives the

complaining tenant of the essential functions that a residence is supposed to provide.

Kaniklidis v. 235 Lincoln Place Housing Corp., 31 HCR 257A, 305 AD2d 546, 759

NYS2d 389, NYLJ 5/27/03, 26:4, HCR Serial #00013725 (AD2 Santucci; Krausman,

Schmidt, Townes). Even where there is demonstrably excessive noise from a neighbor,

courts have found it proper only to award nominal damages to the complaining tenant.

Rosedale Mgt. v. Giulini, 28 HCR 355B, NYLJ 5/30/00, 26:6 (AT 9 & 10 DiPaola;

Floyd, Palella) HCR Serial #00011944.

There is nothing in the record that was presented to this court to show grounds for

any award for noise, not even nominal damages.

POINT IV SO LONG AS THE MULTIPLE DWELLING REGISTRATION

ACTUALLY PROVEN AT TRIAL IS VALID, PREVIOUS INFIRMITIES IN THE

MULTIPLE DWELLING REGISTRATION OR THE PLEADING OF IT ARE

NO BAR TO JUDGMENT

For at least thirty-five years, it has been the law of the First Judicial Department

that while correct multiple dwelling registrations are necessary to be proven at trial in

order to recover a money judgment in a summary proceeding, any previous infirmities in

the registration itself or in the pleading of it is no bar to such recovery. Rosgro Realty Co.

v. Braynen, 70 Misc2d 808, 334 NYS2d 962, TLC Pleadings 7, TLC Serial #0296 (AT1:

1972); 1 Arden St. v. Santana, 15 HCR 319E, NYLJ 10/20/87, 12:2, HCR Serial

#00003926 (AT 1st; Hughes;Sandifer and Ostrau); Arsol Mgt. Co. v. Hawco, 22 HCR

279B, NYLJ 5/11/94, 30:3 (AT1 Parness; McCooe, Glen) HCR Serial #000001185.

Even if at the time of the commencement of the suit, if the premises were

unregistered or subject to an expired registration, proper registration of the premises

during the course of the proceeding with an appropriate motion to conform the pleadings

to the proof is enough to sustain the proceeding. Borglum v. Rich, NYLJ 1/18/90, 23:3,

18 HCR 20B (AT1 Parness; Miller, McCooe); Sacchetti & Son, Inc. v. Southall, NYLJ

6/19/90, 22:1, 18 HCR 318B (AT1 Ostrau; Sandifer, McCooe); Beacway Operating

Corp. v. Hult, NYLJ 3/13/92, 21:2, 20 HCR 136B (AT1 Riccobono; Miller, McCooe);

Seabroad Holding, LLC v. Miller, 28 HCR 158B, NYLJ 3/16/00, 29:5 (AT1 Parness;

McCooe, Davis) HCR Serial #0011805.

Minor errors in the registration are no basis to deny the landlord judgment.

Whitehall Apartments Co. v. Ziegler, 21 HCR 39C, NYLJ 1/26/93, 22:1 (AT1 Parness;

Miller, McCooe) HCR Serial #00000437; 390 West End Assocs. v. Raiff, 23 HCR 574A,

NYLJ 9/22/95, 25:4 (AT1 Parness; Miller) HCR Serial #00007827. Previous infirmities

in the registration statement, once corrected by a proper registration, make the rent during

the period of infirmity fully collectible. Soho Tribeca Space Corp. v. Mills, 26 HCR

283B, NYLJ 5/13/98, 28:6 (Civ NY Martino) HCR Serial #00009621; Dearie v. Hunter,

26 HCR 404A, NYLJ 7/8/98, 31:3 (Civ NY Martino) HCR Serial #00009746; Nadel v.

Mehmood, 30 HCR 288C, NYLJ 5/24/02, 23:1, HCR Serial #00013186 (AT2 & 11

Pesce; Aronin, Patterson).

CONCLUSION

PETITIONER SHOULD BE GRANTED JUDGMENT IN FULL.

Dated: New York, New York January 29, 2007 __________________________________ ADAM LEITMAN BAILEY ADAM LEITMAN BAILEY, P.C. Attorneys for Petitioner 26 Broadway, 21st Floor New York, NY 10004 212 825-0365