Gregory J. Grinberg, Appellant,
Mordechai Eissenberg, 1802 Ocean Parkway Owners, Inc., and Newport Management Company, LLC, Respondents.
Gregory J. Grinberg, appellant pro se.
Office of Steven G. Fauth, LLC (Scott S. Levinson, Esq.), for
PRESENT MICHELLE WESTON, J.P., MICHAEL L. PESCE, MARTIN M.
from a judgment of the Civil Court of the City of New York,
Kings County (Eileen N. Nadelson, J.), entered March 6, 2013.
The judgment, after a nonjury trial, dismissed the complaint.
that the judgment is modified by deleting the provision
thereof dismissing so much of the complaint as was asserted
against defendant 1802 Ocean Parkway Owner's Inc.; as so
modified, the judgment is affirmed, without costs, and the
matter is remitted to the Civil Court for the entry of an
appropriate amended judgment awarding plaintiff the principal
sum of $4, 650 plus interest and costs as against that
brought this action against defendants 1802 Ocean Parkway
Owners, Inc. (1802), Newport Management Company, LLC
(Newport) and Mordechai Eissenberg, an employee of Newport,
for breach of contract or warranty and to recover for
property damage caused by a water leak from the apartment
above his. At a nonjury trial, the proof revealed that
plaintiff is a tenant in a cooperative apartment in a
building owned by 1802 and managed by Newport. Plaintiff
testified that, in 2005, he had discovered a leak in his
ceiling that was causing damage to his apartment. It was
determined that the leak had originated from the toilet in
the apartment above his. In 2008, the building's
management repaired damage caused by that leak, but,
plaintiff contended, the damage had not been repaired
properly and, thus, he had to spend an additional $4, 650 to
fix it. Defendants maintained, among other things, that they
were not required to repair plaintiff's apartment, that
any repairs that had been made had been done gratuitously and
that plaintiff had failed to prove any negligence on their
part. Following the trial, the Civil Court dismissed the
appeal, plaintiff argues that the court erred in dismissing
the complaint because he had established his right to recover
as a matter of law based on defendants' breach of
Multiple Dwelling Law § 78, the proprietary lease, the
warranty of habitability, and an oral contract between
himself and defendant Eissenberg, personally and as a
representative of 1802 and Newport.
to Multiple Dwelling Law § 78, the owner of a multiple
dwelling owes a nondelegable "duty to persons on its
premises to maintain them in a reasonably safe
condition" and is liable to anyone injured "even
though the responsibility for maintenance has been
transferred to another" (see Mas v Two Bridges
Assoc., 75 N.Y.2d 680, 687-688 ). However,
Multiple Dwelling Law § 78 does not entitle a tenant to
make repairs "which he claims the statute requires the
lessor to do, and to [sue] for the value of such work on the
theory of breach of contract.... Even if the statutory duty
could be said to have been imposed for the benefit of one in
[tenant's] position, the tenant might waive same"
(Emigrant Indus. Sav. Bank v One Hundred Eight W.
Forty-Ninth St. Corp., 255 A.D. 570, 576 ,
affd 280 NY 791 ; see Davar Holdings Inc.
v Cohen, 255 A.D. 445');">255 A.D. 445 , affd 280 NY 828
; Garcia v Freeland Realty, Inc., 63 Misc.2d
937 [Civ Ct, NY County 1970]). Here, the proprietary lease
expressly provided that it is the lessee's responsibility
to keep the interior walls, floors and ceilings of the
apartment in good repair.
implied warranty of habitability cannot similarly be waived
or modified by contract (see Real Property Law
§ 235-b ), and, thus, a tenant may be entitled to be
reimbursed by the landlord for repairs the tenant makes to
the premises, where the premises' condition leaves it
dangerous, hazardous or detrimental to his life, health or
safety in violation of the statutory warranty of
habitability, notwithstanding a provision in the lease
purporting to shift the responsibility of repairs to the
tenant (see id.; Spatz v Axelrod Mgt. Co.,
165 Misc.2d 759');">165 Misc.2d 759 [Yonkers City Ct, 1995]). Here, in view of
defendant 1802's failure to properly repair the water
damage and mold in plaintiff's apartment resulting from
the leak, defendant 1802 breached the warranty of
habitability. Consequently, plaintiff is entitled to recover
from defendant 1802 the expenses he incurred in repairing the
conditions (see Missionary Sisters of the Sacred Heart v
Meer, 131 A.D.2d 393');">131 A.D.2d 393 ; Spatz v Axelrod Mgt.
Co., 165 Misc.2d 759');">165 Misc.2d 759).
examined plaintiff's remaining contentions and find them
to be without merit.
the judgment is modified by deleting the provision thereof
dismissing so much of the complaint as was asserted against
defendant 1802 Ocean Parkway Owner's Inc.; as so
modified, the judgment is affirmed and the matter is remitted
to the Civil Court for the entry of an appropriate amended
judgment awarding plaintiff the principal sum of $4, 650 plus
interest and costs as against that defendant.
and SOLOMON, JJ., concur.
WESTON, J.P., dissents and votes to affirm the judgment in
the following memorandum:
disagree with the majority's finding of a breach of the
implied warranty of habitability. In my opinion, plaintiff
never asserted a claim for breach of the implied warranty of
habitability either in his complaint or at oral argument, but
rather confined his challenge to the quality of the repairs.
Even if such a breach were alleged, I would find that