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Strategic Development, LLC v. Joseph Benner

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS New York Supreme and/or Appellate Courts

July 13, 2012


Appeal, on the ground of inadequacy, from a decision of the Civil Court of the City of New York, Kings County (Marcia J. Sikowitz, J.), dated November 23, 2010, deemed from a final judgment of the same court entered November 23, 2010 (see CPLR 5512 [a]).

Strategic Dev., LLC v Benner

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 13, 2012


The final judgment, after a non-jury trial, awarded landlord possession and the principal sum of $1,593.46 in a nonpayment summary proceeding.

ORDERED that the final judgment is affirmed, without costs.

As a defense in this residential nonpayment proceeding, tenant alleged that the warranty of habitability had been breached due to ongoing leaks from the ceiling of his top-floor studio apartment. The evidence at a non-jury trial established that the leaks had begun in October 2008 and that the apartment continued to sustain damage from the leaks through September 2010. After trial, the Civil Court found that tenant was entitled to a 60% abatement in rent for April 2009 through September 2010, for a total abatement of $10,123.15, and awarded landlord possession and the principal sum of $1,593.46. Landlord appeals on the ground of inadequacy, arguing, among other things, that tenant was not entitled to an abatement for the time period after April 25, 2010, when the leaks had ceased.

In "ascertaining damages [for a breach of the warranty of habitability], the finder of fact must weigh the severity of the violation and duration of conditions giving rise to the breach as well as the effectiveness of steps taken by the landlord to abate those conditions" (Park W. Mgt. Corp. v Mitchell, 47 NY2d 316, 329 [1979]). Moreover, 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 Claridge Gardens v Menotti, 160 AD2d 544 [1990]). The determination of a trier of fact as to issues of credibility is given substantial deference, as the trial court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Vizzari v State of New York, 184 AD2d 564 [1992]; Kincade v Kincade, 178 AD2d 510, 511 [1991]).

The Civil Court clearly credited tenant's testimony over landlord's testimony, and weighed the severity of the leaks as well as the effectiveness of landlord's superficial repairs to resolve the long term leaks. While the evidence indicated that the leaks ceased after April 25, 2010, there was substantial damage to the apartment, resulting from the leaks, which damage persisted after April 25, 2010. Inasmuch as the court's conclusions could be reached under a fair interpretation of the evidence, its determination will not be disturbed on appeal. In addition, we note that landlord failed to preserve for review its contention, in effect, that the Civil Court demonstrated bias against it which deprived it of a fair trial, which contention we, in any event, reject (see Tonkin v Lofthouse, 34 AD3d 1309 [2006]; Camperlengo v Lenox Hill Hosp., 239 AD2d 150 [1997]). Landlord's remaining contentions lack merit.

Accordingly, the final judgment is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur. Decision Date: July 13, 2012


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