Opinion
June 9, 1994
Appeal from the Supreme Court, First Department, Ostrau, P.J., Riccobono, Parness, JJ.
While we agree with Appellate Term's determination (see, 154 Misc.2d 737, supra) as to the appropriate standard for, and application of, the implied warranty of habitability pursuant to Real Property Law § 235-b and Park W. Mgt. Corp. v. Mitchell ( 47 N.Y.2d 316, cert denied 444 U.S. 992), inasmuch as both the common law and statutory remedies were not intended to correspond to subjective contractual expectations analogous to the warranty of fitness for a particular purpose in sales cases (UCC 2-315 ), but to objective expectations akin to the warranty of merchantability (UCC 2-314 ) as we have previously recognized (Curry v. New York City Hous. Auth., 77 A.D.2d 534, 535; cf., Mease v. Fox, 200 N.W.2d 791, 795 [Iowa]; Javins v. First Natl. Realty Corp., 428 F.2d 1071, 1075, n 15, cert denied 400 U.S. 925), we deem it impractical to require that, upon remand, Civil Court make specific findings as to the amount of the offset attributable to each defect involved, particularly in a joint trial involving the claims of numerous tenants. It is sufficient, after specifying the nature of the defects and their duration, for the trier to arrive at a sum based upon "the difference between the fair market value of the premises if they had been as warranted, as measured by the rent reserved under the lease, and the value of the premises during the period of the breach" (Park W. Mgt. Corp. v. Mitchell, supra, at 329). The court should exercise reasonable practical judgment in such matters, and there is no reason why such damage calculations should be any more precise than determinations in complex personal injury actions. The same holds true with respect to the trial court's findings as to the duration of the breaches.
Given the procedural posture, Appellate Term properly declined to rule on the issue of tenants' entitlement to attorney's fees, and we make no determination as to that issue. However, confusion as to whether the amount of a particular abatement award also warrants an attorney's fee award pursuant to Real Property Law § 234 may be avoided by the initial consideration of the true scope of the dispute litigated, followed by comparison of the amount actually sought by the tenant, as determined by the pleadings, offers of proof, or other means (given the exigencies of pleading in summary proceedings), with the actual recovery, bearing in mind that the statutory reciprocal provision for attorney's fees was not intended to confer a windfall (see, Gottlieb v. Laub Co., 82 N.Y.2d 457, 464-465; Murphy v. Vivian Realty Co., 199 A.D.2d 192, 194).
Similarly, a determination as to the landlord's entitlement to prejudgment interest on back rent recovered is premature at this point. Although CPLR 5001 (a) provides that interest shall be recovered on monetary damages awarded for breach of contract or any act or omission affecting possession or enjoyment of property, such award, like that of attorney's fees, is generally available only to a "prevailing" party (Delulio v 320-57 Corp., 99 A.D.2d 253, 254; and see, State of New York v Williams, 140 A.D.2d 836; Ash Miller v. Freedman, 114 A.D.2d 823; Peachy v. Rosenzweig, NYLJ, July 2, 1993, at 21, col 2 [App Term, 1st Dept]). Further proceedings must be conducted to determine whether any of the parties will attain that status. We reject the tenants' argument, however, that interest should be denied the landlord for delays engendered by his litigation tactics since unlike the authority upon which the tenants rely (Kips Bay Towers Assocs. v. Yuceoglu, 134 A.D.2d 164, 165, lv denied 71 N.Y.2d 806), there is no basis for finding an estoppel against such recovery.
We have considered appellants' other contentions and find them to be without merit.
Concur — Carro, J.P., Rosenberger, Wallach and Williams, JJ.