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ABRAHAM MALEK v. RAFAEL M. PERDINA (01/29/69)

CIVIL COURT OF THE CITY OF NEW YORK, TRIAL TERM, NEW YORK COUNTY 1969.NY.40304 <http://www.versuslaw.com>; 297 N.Y.S.2d 14; 58 Misc. 2d 960 January 29, 1969 ABRAHAM MALEK, PETITIONER,v.RAFAEL M. PERDINA, RESPONDENT. ABRAHAM MALEK, PETITIONER, V. MOSINA CRUZ, RESPONDENT Abraham Pruzan for petitioner. Harold J. Rothwax and E. Judson Jennings for respondents. Allen Murray Myers, J. Author: Myers


Allen Murray Myers, J.

Author: Myers

 The landlord has instituted these summary proceedings to recover possession of the tenants' respective apartments by reason of the nonpayment of the rent by the tenant, Cruz, in the sum of $75 for the period from October 20, 1968 to November 19, 1968; and by the tenant, Perdina, in the sum of $74.75 for the period from October 7, 1968 to November 6, 1968.

It was stipulated at the trial that the decision in the Cruz case should also be determinative of the issues in the Perdina case.

By their answers, tenants have admitted that the rents demanded were due and have not been paid, but have requested the court to stay the proceedings pursuant to section 755 of the Real Property Actions and Proceedings Law (formerly Civ. Prac. Act, § 1446-a), on the ground that various "constructive eviction" violations have been filed against the premises wherein the apartments are located.

The premises consist of a six-story, 28-apartment tenement house located at 309 East Houston Street in Manhattan. The evidence indicates the following violations and orders of record:

Item 389. D26-11.03 Administrative Code. Cleanse to the satisfaction of this department the floors and stairs public hall all stories.

Item 391. D26-11.01, 11.03, 11.05 Administrative Code. Remove the accumulation of refuse and/or rubbish and maintain in a clean condition the north and south courts and yards.

Item 392. D26-19.01 Administrative Code. Provide adequate lighting fire passage.

The said violations were reported on March 15, 1968 and orders for their rectification were issued on April 19, 1968. Reinspections by the Department of Rent and Housing Maintenance on October 7, 1968 and December 31, 1968 revealed no compliance with the orders.

The case was tried before me on January 16, 1969. Upon several days' notice to the attorneys for both parties and without any objection on their part, I visited the premises on January 24, 1969 at about 1:00 p.m.

I found an employee of the landlord in the process of removing what appeared to have been a vast accumulation of refuse and rubbish from the courts and yards.

An inspection of the public halls revealed that all of the windows therein were filthy and that all of the window frames were laden with thick layers of dirt and dust which must have taken years to accumulate. The floors and stairs were similarly dirty and accumulations of dust and dirt were also in evidence on the tops of all of the wainscoting. The court is in no position to tell whether adequate lighting was provided in the fire passage and must therefore rely solely upon the existing violation.

Section 755 of the Real Property Actions and Proceedings Law provides that upon proper proof that an order to remove a violation has been made, by a duly authorized agency of the city, affecting a building used for dwelling purposes, "if the condition against which such * * * order is directed is, in the opinion of the court, such as to constructively evict the tenant from a portion of the premises occupied by him, the court before which the case is pending may stay proceedings to dispossess the tenant for non-payment of rent" until all of the conditions of constructive eviction have been eliminated. (See Brissett v. Cherry, 54 Misc. 2d 353.)

Although there cannot be a constructive eviction without a surrender of possession by the tenant in an action for damages for breach of the covenant for quiet enjoyment (1 Rasch, Landlord and Tenant and Summary Proceedings 710, § 876) a surrender of possession by the tenant is not necessary to invoke the sanction of section 755 of the Real ...


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