SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
February 25, 2011
JAMES S. JOSEPH,
APARTMENT MANAGEMENT ASSOCIATES, LLC,
Appeal from a judgment of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), entered May 27, 2009.
Joseph v Apartment Mgt. Assoc., LLC
Appellate Term, Second 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This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on February 25, 2011
PRESENT: PESCE, P.J., GOLIA and STEINHARDT, JJ.
The judgment, after a non-jury trial, awarded plaintiff the principal sum of $3,342.83.
ORDERED that the judgment is reversed, without costs, and judgment is directed to be entered dismissing the action.
Plaintiff commenced this small claims action against defendant, the managing agent of his landlord, to recover the sum of $5,000 for the loss of his personal property as a result of an infestation of bedbugs in his apartment. After a non-jury trial, the Civil Court awarded plaintiff the principal sum of $3,342.83.
To the extent that the Civil Court's determination of liability may have been predicated on a finding that defendant breached the implied warranty of habitability, defendant correctly argues that in an action based upon a landlord's breach of the implied warranty of habitability, consequential damages, such as for property damage, are not recoverable (see Concetto v Pedalino, 308 AD2d 470 ; Cunningham v Tennis Ct. LLC, 17 Misc 3d 134[A], 2007 NY Slip Op 52203[U] [App Term, 2d & 11th Jud Dists 2007]; 303 Beverly Group v Alster, 190 Misc 2d 69 [App Term, 2d & 11th Jud Dists 2001]). We note, in addition, that defendant was not plaintiff's landlord, but his landlord's managing agent.
The Civil Court's determination in favor of plaintiff may also have been predicated upon Multiple Dwelling Law § 80 (1), which provides that: "[t]he owner shall keep all and every part of a multiple dwelling, the lot on which it is situated, and the roofs, yards, courts, passages, areas or alleys appurtenant thereto, clean and free from vermin, dirt, filth, garbage or other thing or matter dangerous to life or health." Multiple Dwelling Law § 4 (4) defines an "owner" to include an "agent . . . directly or indirectly in control of a building." A party injured as a result of an "owner's" failure to fulfill the duty imposed by Multiple Dwelling Law § 80 (1) may recover damages from the "owner" (Mas v Two Bridges Assoc., 75 NY2d 680, 687 ; Weiss v City of New York, 16 AD3d 680 ).
The decision of a fact-finding court should not be disturbed upon appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence (see Richard's Home Ctr. & Lbr. v Kraft, 199 AD2d 254 ; Matter of Poggemeyer, 87 AD2d 822, 823 ). Moreover, it has been stated that this rule applies with greater force to judgments rendered in the Small Claims Part of the court (see Williams v Roper, 269 AD2d 125, 126 ), as the standard of review is whether substantial justice has been done between the parties according to the rules and principles of substantive law (CCA 1807). In the case at bar, however, a determination that defendant breached the duty set forth in the statute is not in accordance with the principles of substantial justice as there was insufficient proof to establish that defendant had failed to act with reasonable diligence upon being advised by plaintiff of the bedbug infestation in his apartment (CCA 1807; see generally Zayas v Plaza, 23 Misc 3d 1104[A], 2009 NY Slip Op 50579[U] [Civ Ct, NY County 2009]).
Accordingly, the judgment is reversed and the action dismissed.
Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: February 25, 2011
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