A CAVEAT TO SOME BASIC RULES ON BREACH OF WARRANTY OF HABITABILITY

de Socio v. 136 E. 56th St. Owners Inc, TS-300481-09, 2018-10-05 , Court: Civil Court, New York County, Judge Dakota Ramseur - NYLJ 11/26/18:

"The warranty of habitability applies only to areas that are “within the landlord’s control” (12-14 E. 64th Owners Corp. v. Hixon, 130 AD3d 425, 426 [1st Dept 2015], citing Park W. Mgt. Corp., 47 NY2d 316, 327 [1979] [affirming appellate term's denial of rent abatement for period where, after a flood, cooperative unit owner advised the cooperative that she intended to make leak repairs herself and where "[t]he cooperative credibly submit[ted] that, absent respondent’s delays and misconduct, it would have restored [the unit owner's] apartment to a habitable condition]).

Consequently, a tenant cannot recover under the warranty of habitability, or any abatement will be reduced, when access to the landlord to inspect or remedy the alleged defective condition is refused or thwarted (N.Y. Real Prop. Law §235-b; Finkelstein & Ferrara, Landlord and Tenant Practice in New York §9:79; Scherer/Fisher, Residential Landlord Tenant L. in N.Y. §12:115 [collecting cases]; Brookwood Mgt. Co. v. Melius, 14 Misc 3d 137(A) [App Term 9th & 10th Jud Dists 2007] [tenant not entitled to an abatement because he denied access to landlord's agents to remedy the condition and, once access was granted, the agents corrected the condition]; W. 122nd St. Assoc., L.P. v. Gibson, 5 Misc 3d 137(A) [App Term 1st Dept 2004] [affirming trial court's determination in favor of landlord based on finding that tenant impeded landlord's ability to complete the stipulated painting work]; 930 Fifth Corp. v. Shearman, 23 Misc 3d 133(A) [App Term 1st Dept 2009] [affirming trial court's judgment in favor of landlord where "any roach or mice infestation in tenant's apartment resulted largely from her failure to grant reasonable access to landlord"]; Ansonia Assoc. v. Moan, NYLJ 7/13/95, p 25, col 2 (App Term 1st Dept] [tenants refused access to landlord for asbestos abatement work]; see also N.Y.C. Administrative Code §27-2008)."