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This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: RIOS, J.P., PESCE and ALIOTTA, JJ
Appeal from a judgment of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered August 23, 2010. The judgment, after a non-jury trial, awarded plaintiff the principal sum of $3,000 and dismissed defendants' counterclaim.
ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for a new trial.
Plaintiff commenced this small claims action to recover rent allegedly owed for the months of October and November 2009. Defendants counterclaimed, asserting, at a non-jury trial, that plaintiff breached of the warranty of habitability based on conditions including a roach infestation and odors, and that plaintiff breached the lease beginning on September 27, 2009, by precluding defendants from using the backyard. In a decision after trial, the Civil Court found that defendants were entitled to a 25 percent abatement of the rent for the months of October and November 2009 but that they could not recoup the rents they had already paid for the months of July, August and September 2009. A judgment was subsequently entered, from which defendants appeal.
In our view, the Civil Court's determination failed to render "substantial justice . . . between the parties according to the rules and principles of substantive law" (CCA 1807). The Civil Court found that plaintiff had precluded defendants "at some point" from using the backyard and that the backyard was part of the area leased to defendants. As this deprivation was not de minimis (see Eastside Exhibition Corp. v 210 E. 86th St. Corp., 18 NY3d 617 ), it constituted a partial actual eviction and discharged defendants from all liability for rent accruing after the eviction, for as long as the eviction continued (id.; see Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77, 83 ). Since the Civil Court failed to give effect to this rule and made no finding as to the length of time that the eviction continued, a new trial is required.
The Civil Court also erred in barring defendants from recovering, based on a breach of the warranty of habitability, rents already paid. To the extent that there was a rule barring such a recoupment (see e.g. Covington v McKeiver, 88 Misc 2d 1000 [App Term, 9th & 10th Jud Dists 1976]), the rule was not one of substantive law but was procedural in nature, applicable only in summary proceedings, and has now been entirely rejected (see Committed Community Assoc. v Croswell, 171 Misc 2d 340 [App Term, 2d & 11th Jud Dists 1997], affd 250 AD2d 845 ; see also Heights 170 LLC v York, 29 Misc 3d 138[A], 2010 NY Slip op 52045[U] [App Term, 1st Dept 2010]). Thus, upon the new trial, the court shall also determine the amount, if any, to be awarded defendants for breach of the warranty of habitability for the months in which they had paid rent.
Accordingly, the judgment is reversed and the matter remitted to the Civil Court for a new trial.
Rios, J.P., Pesce and Aliotta, JJ., concur. Decision ...