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Grinberg v. Eissenberg

Supreme Court of New York, Second Department

December 29, 2017

Gregory J. Grinberg, Appellant,
v.
Mordechai Eissenberg, 1802 Ocean Parkway Owners, Inc., and Newport Management Company, LLC, Respondents.

          Gregory J. Grinberg, appellant pro se.

          Law Office of Steven G. Fauth, LLC (Scott S. Levinson, Esq.), for respondent.

          PRESENT MICHELLE WESTON, J.P., MICHAEL L. PESCE, MARTIN M. SOLOMON, JJ

         Appeal 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.

         ORDERED 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 defendant.

         Plaintiff 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 complaint.

         On 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.

         Pursuant 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 [1990]). 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 [1939], affd 280 NY 791 [1939]; see Davar Holdings Inc. v Cohen, 255 A.D. 445');">255 A.D. 445 [1938], affd 280 NY 828 [1939]; 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.

         The implied warranty of habitability cannot similarly be waived or modified by contract (see Real Property Law § 235-b [2]), 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 [1987]; Spatz v Axelrod Mgt. Co., 165 Misc.2d 759');">165 Misc.2d 759).

         We have examined plaintiff's remaining contentions and find them to be without merit.

         Accordingly, 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.

          PESCE and SOLOMON, JJ., concur.

          WESTON, J.P., dissents and votes to affirm the judgment in the following memorandum:

         I 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. [1] Even if such a breach were alleged, I would find that ...


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