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Heights 170 LLC v. Laurie York and Chris Frigon

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT


November 29, 2010

HEIGHTS 170 LLC, PETITIONER-LANDLORD-RESPONDENT,
v.
LAURIE YORK AND CHRIS FRIGON, RESPONDENTS-TENANTS-RESPONDENTS.

Landlord, as limited by its brief, appeals from that portion of an order of the Civil Court of the City of New York, New York County (Jean T. Schneider, J.), dated February 8, 2010, after a non-jury trial, which awarded tenant a rent abatement in the amount of $10,140, thereby reducing the net money judgment in landlord's favor to the sum of $660 in a nonpayment summary proceeding.

Per curiam.

Heights 170 LLC v York

Decided on November 29, 2010

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: Shulman, J.P., McKeon, Schoenfeld, JJ

Order (Jean T. Schneider, J.), dated February 8, 2010, insofar as appealed from, affirmed, with $10 costs.

Civil Court properly resolved the habitability issues litigated below. There is ample evidence to sustain the trial court's finding that tenants were subjected to "persistent flooding" in their apartment over a period of approximately 23 months, causing the collapse of the bathroom ceiling and significant periods in which tenants' water was shut off in connection with the floods (see generally Greenwich Realty Co. v Meltzer, 18 Misc 3d 133[A], 2008 NY Slip Op 50119[U] [2008]).

Nor does it avail landlord that the water damage was caused by the conduct of another tenant in the building. A landlord's obligation to maintain residential premises in a habitable condition is one imposed by law (see Real Property Law § 235-b) and encompasses "acts of third parties" (see Park W. Mgt. Corp. v Mitchell, 47 NY2d 316, 327 [1979], cert denied 444 US 992 [1979]). The abatement, although substantial, was within reasonable limits and is not disturbed (see Sargent Realty Corp. v Vizzini, 101 Misc 2d 763 [1979]). We note that tenants' abatement is not limited to the amount of unpaid rent sought by landlord (see Alp Realty Corp. v Huttick, 160 Misc 2d 76 [1994]; 350 Assoc. v Feldman, NYLJ, Dec. 18, 1978, at 13, col 6 [App Term, 1st Dept.]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: November 29, 2010

20101129

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