Opinion
February 24, 2000
Judgment, Supreme Court, New York County (Harold Tompkins, J.), entered May 24, 1999, which, inter alia, awarded plaintiffs damages in the principal amount of $36,230.90 after a nonjury trial in an action for breach of a cooperative apartment sublease, unanimously affirmed, with costs.
Joanne Benisch Preisser for the Plaintiffs-Respondents,
Morrell I. Berkowitz for the Defendant-Appellant.
WILLIAMS, J.P., TOM, SAXE, FRIEDMAN, JJ.
A fair interpretation of the evidence supports the trial court's findings that plaintiff adequately investigated and remedied the electrical problems in the apartment, and that such problems were not such as to constitute either a breach of the warranty of habitability (see, Park W. Mgt. Corp. v. Mitchell, 47 N.Y.2d 316, 327-328, cert denied 444 U.S. 992) or a constructive eviction (see,Barash v. Pennsylvania Term. Real Estate Corp., 26 N.Y.2d 77, 83). Nor was payment of rent excused by reason of any "lock-out", the record showing that plaintiffs changed the locks after defendant and his family had already moved out (see, Olim Realty Corp. v. Big John's Moving, 250 A.D.2d 744; Nieves v. 331 E. 109 th St. Corp., 112 A.D.2d 59, 61). Defendant's wife's claim for certain items of personal property allegedly left behind in the apartment was properly rejected on the ground that the items in question were not among those included in a pretrial specification of items left behind. We also note defendant's wife's admission that she had been allowed access to the apartment to retrieve other items left behind.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.