Appeal from a judgment of the District Court of Nassau County, First District (Martin J. Massell, J.), entered May 27, 2011.
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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 27, 2012
PRESENT: LaCAVA, J.P., NICOLAI and LaSALLE, JJ
The judgment, after a non-jury trial, dismissed plaintiffs' cause of action and awarded defendants the principal sum of $5,000 on their counterclaim.
ORDERED that the judgment is affirmed, without costs.
Plaintiffs commenced this small claims action to recover the sum of $5,000, alleging that the apartment they had rented from defendants was illegal and defective. Defendants counterclaimed to recover the sum of $5,000 for plaintiffs' use and occupancy of the apartment. Following a non-jury trial, the District Court dismissed plaintiffs' cause of action and awarded defendants the sum of $5,000 on their counterclaim.
The demised premises consisted of a separate apartment in a house which was owned and occupied by defendants. At trial, plaintiff Claude Sinclair testified that the apartment could be legally rented only to a family member of the owners and that defendants had failed to provide plaintiffs with heat, hot water or a working stove at various periods during their tenancy. Defendants disputed plaintiffs' allegations with respect to the conditions in the apartment.
To the extent that plaintiffs sought to obtain damages on the ground
that defendants had violated the warranty of habitability (Real
Property Law § 235-b), it was incumbent upon plaintiffs to demonstrate
that the premises had been unfit for human habitation, or that the
condition of the premises had deviated from the uses reasonably
intended by the parties (id.; see Park W. Mgt. Corp. v Mitchell, 47
NY2d 316, 325 ), by offering proof as to the dates, severity and
duration of the conditions complained of (see Anoula Realty Corp. v
Weiss, 16 Misc 3d 133[A], 2007 NY Slip Op 51496[U] [App Term, 2d & 11th Jud Dists 2007];
Liberti v Fitzpatrick, 1 Misc 3d 134[A], 2003 NY Slip Op 51643[U] [App
Term, 9th & 10th Jud Dists 2003]; Eke v Ayanru, 2002 NY Slip Op 40206[U] [App Term, 2d &
11th Jud Dists 2002]). Plaintiffs were also required to show that defendants had notice of the
conditions complained of (Anoula Realty Corp. v Weiss, 16 Misc 3d 133[A], 2007 NY Slip
Op 51496[U]; New
Franconia Assoc. v Popper, 2003 NY Slip Op 51116[U] [App Term, 1st
Dept 2003]). Plaintiffs failed to prove their claim with the requisite
degree of specificity. We therefore see no basis to disturb the
District Court's dismissal of plaintiffs' cause of action premised on
an alleged violation of the warranty of habitability.
Plaintiffs also seek, in effect, a recoupment of the rents they had paid, on the ground that their rental of the unit had been illegal. Defendants seek to recover for plaintiffs' use and occupancy of the premises. Defendants testified, and plaintiffs did not dispute, that plaintiffs had leased the premises from defendants for $1,400 a month; that, after learning that the rental unit was an illegal apartment, defendants had terminated the lease; and that, over a 10-month period, plaintiffs had not paid rent or use and occupancy to defendants.
"There is no bar to the recovery of rent where a one-family home is
used as a two-family" (Tuzel v Reilert, NYLJ, Dec. 3, 1996, at 26, col
3 [App Term, 9th & 10th Jud Dists 1996]; accord Corsini v Gottschalk, NYLJ, Dec. 20, 1999
[App Term, 9th & 10th Jud Dists 1999]; Soalt v Pulisic, NYLJ, Dec. 5, 1991 [App Term, 9th
& 10th Jud Dists 1991]). Consequently, plaintiffs were not entitled to recoup from defendants the rents they
had paid, based on the illegality of the premises, and defendants were not precluded from recovering from
plaintiffs for the use and occupancy of the rental unit. We therefore see no basis to disturb the District Court's
dismissal of plaintiffs' cause of action premised on the illegality of their rental, and its award of
judgment in favor of defendants on their counterclaim.
Accordingly, as the judgment rendered substantial justice between the parties according to the rules and principles of substantive law ...