360 W. 51st St. v. Cornell

Full title: 360 WEST 51ST STREET REALTY, LLC, Appellant, v. BRENDA CORNELL et al.…

Court: Appellate Term of the Supreme Court of New York, First Department

Date published: Jan 30, 2007

14 Misc. 3d 90 (N.Y. App. Term 2007)

2007 N.Y. Slip Op. 27028

831 N.Y.S.2d 634

Opinion

No. 570358/04.

January 30, 2007.

APPEAL from (1) a judgment of the Civil Court of the City of New York, New York County (Ernest J. Cavallo, J.), entered August 22, 2005, (2) an order of that court (Anthony J. Fiorella, Jr., J.), entered June 15, 2004, and (3) an order of that court (Anthony J. Fiorella, Jr., J.), entered June 10, 2004. The judgment entered August 22, 2005, after a nonjury trial, awarded respondent $17,500 on her counterclaim for breach of the warranty of habitability in a nonpayment summary proceeding. The order entered June 15, 2004 directed petitioner to deposit respondent's security deposit in escrow. The order entered June 10, 2004 directed petitioner to refund respondent her security deposit.

Landman Corsi Ballaine Ford P.C., New York City ( James E. Davies and Samantha D. Migdal of counsel), for appellant. Gallet Dreyer Berkey, LLP, New York City ( Beatrice Lesser, Morrell I. Berkowitz and Erica J. Stien of counsel), for respondents.

Before: MCKEON, P.J., DAVIS and SCHOENFELD, JJ.

OPINION OF THE COURT

Per Curiam.

Final judgment, entered August 22, 2005, affirmed, with $25 costs. Appeal from orders, entered June 15, 2004 and June 10, 2004, dismissed, without costs, as subsumed in the appeal from the final judgment.

A fair interpretation of the voluminous trial evidence, including the opinion testimony offered by tenant's environmental and medical experts, supports the trial court's fact-laden determination that landlord breached the warranty of habitability through its demolition and debris removal work in the building's basement, which caused "metallic dust and fungi" to enter into tenant's ground floor apartment ( see Park W. Mgt. Corp. v Mitchell, 47 NY2d 316, cert denied 444 US 992). The record shows that tenant promptly notified landlord of the deleterious health effects caused by its construction, and, as the trial court expressly found, landlord "did absolutely nothing to examine her complaint or acknowledge the possibility of a problem or call in an expert to evaluate the situation." The abatement award, though substantial, was warranted in light of the serious nature of the apartment conditions shown to exist.

We have considered landlord's remaining arguments and find them unavailing.