BREACH OF LEASE OR BREACH OF WARRANTY OF HABITABILITY

As seen recently in the commercial lease area, the parties can agree to waive a commercial tenant's right to bring a Yellowstone injunction; but with residential lease,s the warranty of habitability is absolute.

HAMEROFF v. SWAMINATHAN, 2019 NY Slip Op 50875 - NY: Appellate Term, 2nd Dept. May 31, 2019:

"A valid lease may qualify as documentary evidence within the meaning of CPLR 3211(a)(1) (see Sunset Cafe, Inc. v Mett's Surf & Sports Corp., 103 AD3d 707, 709 [2013]). "`[L]ease interpretation is subject to the same rules of construction as are applicable to other agreements'" (Avon Bard Co. v Aquarian Found., 260 AD2d 207, 208 [1999], quoting Matter of Cale Dev. Co. v Conciliation & Appeals Bd., 94 AD2d 229, 234 [1983], affd 61 NY2d 976 [1984]). Paragraph five of the lease requires defendant to provide cooling if air conditioning was installed, but also states that "[s]topping or reducing the service(s) will not be reason for Tenant to stop paying rent, to make a money claim or to claim eviction." Pursuant to this language, plaintiff has agreed not to bring an action to recover money damages based on a violation of paragraph five of the lease. Consequently, the branches of defendant's motion seeking to dismiss the causes of action for breach of contract, breach of the lease, constructive eviction, and breach of the covenant of quiet enjoyment to the extent that they are predicated on paragraph five of the lease should have been granted.

However, the warranty of habitability is not waivable (see Real Property Law § 235-b [2]; see also Park W. Mgt. Corp. v Mitchell, 47 NY2d 316, 327 [1979]; Vanderhoff v Casler, 91 AD2d 49 [1983]; Windy Acres Farm, Inc. v Penepent, 40 Misc 3d 63, 65-66 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Consequently, the Civil Court properly declined to dismiss the cause of action alleging a breach thereof."