by Adam Leitman Bailey, Esq.

2. Defending Against
Tenant’s Warranty of
Habitability Claim and
Other Defenses
Presented by
Adam Leitman Bailey, Esq.

3. 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.

4. 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.

5. 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.)

6. 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,

7. 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.

8. 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.

9. 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)

10. 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.

11. 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

12. 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

13. 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

14. 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.

15. 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.

16. 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.

17. 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.

18. 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).

19. 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

20. 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

21. 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

22. 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]).

23. 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

24. 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.

25. 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.

26. 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.

27. 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

28. 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

29. 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.

30. 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.

31. 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

32. 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.

33. 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.

34. 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.

35. 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

36. 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).

37. 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.