Opinion
No. 571058/12.
2013-03-12
Altagracia BURGOS, Plaintiff–Respondent, v. HARRY REALTY LLC, Defendant–Appellant, and Renee Roubos, Defendant.
Defendant Harry Realty LLC appeals from a judgment of the Civil Court of the City of New York, New York County (Frank P. Nervo, J.), entered on or about April 18, 2012, after a nonjury trial, in favor of plaintiff and awarding her damages in the principal sum of $3,500.
Present: TORRES, J.P., SCHOENFELD, SHULMAN, JJ.
PER CURIAM.
Judgment (Frank P. Nervo, J.), entered on or about April 18, 2012, reversed, and new trial ordered, with $30 costs to abide the event.
While the evidence may tend to support the trial court's express finding that plaintiff-tenant was forced to endure unreasonable noise emanating from an upstairs apartment, the existing record is insufficient to permit informed appellate review of the court's ultimate determinations that defendant-landlord breached the implied warranty of habitability ( seeReal Property Law § 235–b) and that plaintiff sustained $3,500 in damages in result. With respect to the latter determination, the court's written decision did not explain, and it is not apparent from the record, on what basis the court calculated its damage award. In this regard, the absence from the record of any indication as to the amount of rent reserved in plaintiff's stabilized lease(s) precludes an informed judicial determination as to the amount of damages, if any, sustained by plaintiff (Park W. Mgt. Corp. v. Mitchell, 47 N.Y.2d 316, 329 [1979],cert denied444 U.S. 992 [1979] ). A new trial is also warranted on the liability aspect of the case, in view of the paucity of record evidence and the court's failure to make specific findings as to the duration of the noise condition and the timing of plaintiff's complaints, without which the reasonableness of the defendant's remedial efforts cannot be adequately assessed ( see generally Armstrong v. Archives LLC, 46 AD3d 465 [2007] ).