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:

"As an initial matter, the Court notes that Plaintiff may not recover damages for loss or diminution in value of personal property, personal injury, or pain and suffering on a claim for breach of the implied warranty of habitability (Elkman v. Southgate Owners Corp., 233 AD2d 104, 105 [1st Dept 1996] ["Loss or diminution in value of personal property as well as personal injuries and pain and suffering are not recoverable under Real Property Law [RPL] §235-b.”]). Accordingly, any claim to that effect must be denied.

The proper measure of damages for a breach of the warranty of habitability is the difference between the fair market value of the premises in fully habitable condition, as measured by the rent reserved under the lease, and the value of the premises during the period of the breach (Park W. Mgt. Corp. v. Mitchell, 47 NY2d 316, 329 [1979]). 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 (id.).

Complete vacatur is not necessary to receive an abatement; it is sufficient to have been constructively evicted from a portion of the premises (Minjak Co. v. Randolph, 140 AD2d 245, 248 [1st Dept 1988]). The finder of fact must weigh the severity and duration of the breach, as well as the effectiveness of steps taken by the landlord to abate those conditions (id.). 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 “need not require any expert testimony” (RPL §235-b; see also Park W. Mgt. Corp., 47 NY2d at 329-30).

Given the fact-specific nature of each inquiry, courts have awarded a broad spectrum of abatements, up to and including a full abatement, for water leaks, nonfunctioning appliances, and mold conditions (Solow Management Corp. v. Reinicke, NYLJ, 1/29/01, p 26, col 1 [App Term 1st Dept] [15 percent rent abatement for "sporadic leaks from a living room skylight and ceiling" and a loss of air conditioning]; Collins Estate Corp. v. Beader, NYLJ, 4/9/87, p 14, col 1 [App Term 1st Dept] [abatement reduced to 25 percent when tenant's unit was "impaired primarily as a result of a leak originating above tenant's bedroom ceiling from an upstairs apartment"]; W.S.L.S.J. & I Weinrib, A & M Reiss v. Fuchs, NYLJ, 3/5/99, p 26, col 2 [App Term 1st Dept] [court affirmed 25 percent abatement covering 18-month period]; Koch v. McQueen, NYLJ, 3/4/96, p 31, col 1 [App Term, 9th and 10th Jud Dists] [50 percent abatement for a two-month period upheld for defective repair of a deteriorated bathtub, dislocation of tiles caused by leakage in bathroom ceiling and water infiltration of common hallway ceiling]; Pamela Equities v. McSween, NYLJ, 8/18/95, p 24, col 4 [App Term, 1st Dept] [tenant awarded 25 percent abatement for 20-month period of "recurring water leaks"]; Gottesman v. Graham Apartments, Inc., 47 Misc 3d 1213(A), 2015 WL 1839746 [Civ Ct Kings County] [100 percent abatement awarded when landlord was found liable for a flood that resulted in water damage to tenant's apartment]; 157 East 57th Street LLC v. Birrenbach, NYLJ, 5/15/03, p 22, col 6, [Civ Ct NY County] [full abatement warranted where mold's size and spread necessitated abandonment of the apartment for remediation], aff’d, 8 Misc 3d 127(A) [App Term 1st Dept 2005]; Pallotta v. Perry, 2002 NY Slip Op 40328(U) [App Term 9th & 10th Jud Dists] [25 percent abatement warranted by roof leak resulting in mold and mildew, a defective freezer door gasket, and oven problems]).

The credible evidence at trial demonstrates profound damage to the Apartment rendering it materially uninhabitable from the time that the leaks began in 2005 to April 2016, when the Corporation completed the necessary repairs. The evidence shows, during that time period, numerous leaks, damage to walls, fixtures, the terrace, and personal items, and the accompanying complaints. The evidence shows the existence of mold which, while remediated, nevertheless required a significant overhaul of the Apartment. Accordingly, Plaintiff is entitled to a full abatement."