Upper E. Lease Assoc., LLC v Cannon
Decided on November 7, 2012
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This opinion is uncorrected and will not be published in the printed Official Reports.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: NICOLAI, P.J., IANNACCI and LaSALLE, JJ
Appeal from a judgment of the District Court of Nassau County, First District (Michael A. Ciaffa, J.; op 30 Misc 3d 1213[A], 2011 NY Slip 50054[U]), entered September 6, 2011. The judgment, insofar as appealed from, after a non-jury trial, dismissed the complaint.
ORDERED that the judgment, insofar as appealed from, is affirmed, without costs.
In this action to recover rent arrears, plaintiff appeals from so much of a judgment as, after a non-jury trial, dismissed the complaint. We affirm.
Upon the testimony and documentary evidence introduced at trial, the District Court could properly find that defendant was constructively evicted from the apartment in question as the result of a second-hand smoke condition (see Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77, 83 ; Reinhard v Connaught Tower Corp., 2011 NY Slip Op 33101[U] [Sup Ct, NY County 2011]; Poyck v Bryant, 13 Misc 3d 699 [Civ Ct, NY County 2006]). In addition, the court's award to defendant of a graduated abatement of rent for the months prior to her abandonment of the apartment was not unwarranted in view of the increasing severity of the smoke condition (see Park W. Mgt. Corp. v Mitchell, 47 NY2d 316 ). Accordingly, the judgment, insofar as appealed from, is affirmed.
Nicolai, P.J., Iannacci and LaSalle, JJ., concur. Decision Date: November 07, 2012
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