Summary
In B.L.H. Realty Corp. v Cruz (87 Misc.2d 258) decided in May, 1975, the court found that by reason of the landlord's violation of the warranty of habitability, and based upon the same proof that made out the landlord's breach, the tenant suffered damages equal to 50% of the rental which was deposited in court by the tenant.
Summary of this case from Kekllas v. SaddyOpinion
May 16, 1975
Appeal from the Civil Court of the City of New York, Bronx County, DAVID DAVILA, H.O.
Allison Kaufman (Abraham J. Yasgour of counsel), for appellant-respondent.
Michael D. Hampden, Niranjana I. Shah and Robert D. Lippmann for respondent-appellant.
Per Curiam. Because landlord had failed to remove serious violations in tenant's apartment, which could constitute the basis for the constructive eviction of tenant, this nonpayment summary proceeding, brought in March of 1971, was stayed under section 755 Real Prop. Acts. of the Real Property Actions and Proceedings Law by order of the court below dated March 25, 1971. For almost three years thereafter tenant continued to deposit her rent in court under the order, yet the landlord made no repairs. Whereupon tenant moved out on November 14, 1973.
Having been effectively forced out of possession, on November 26, 1973, tenant moved for an order vacating the stay and for return of the money deposited by her. Eventually, having repaired the apartment for a new tenant, landlord, in March of 1974, cross-moved for similar relief. At that time $2,153.58 was on deposit.
We need not retabulate here the uncorrected conditions under which tenant was compelled to live before she moved. The sordid list is detailed in the opinion of the hearing officer below. Suffice to state that the record sustains his findings, and his determination that with a minor exception, the conditions which gave rise to the order under section 755 Real Prop. Acts. of the Real Property Actions and Proceedings Law "continued to exist to the time the tenant vacated the apartment". Applying equitable principles, he directed that one half of the moneys be returned to the landlord and one half to the tenant. We reach the same conclusion by a different route.
There is no provision in section 755 for the return of deposited rent to the tenant when the stay is vacated (see Real Property Actions and Proceedings Law, § 755, subd 3; Rosgro Realty Co. v Braynen, 70 Misc.2d 808; Matter of Hall v Stroud, NYLJ, April 26, 1974, p 2, col 4; Gutwein v Gomez, NYLJ, July 23, 1973, p 2, col 1). But this court has long since recognized the remedial nature of the statute (Brissett v Cherry, 54 Misc.2d 353), and that it need not be given so restrictive a construction as to violate its spirit (ibid.). Where the tenant has a proper setoff or counterclaim against the landlord, the amount due landlord may be reduced accordingly (800 Inc. v Thropp, NYLJ, Feb. 2, 1973, p 2, col 4). Upon the entry of the order vacating the stay landlord is only entitled to so much of the money remaining on deposit as is due him. It is not the intention of section 755 that landlord be unjustly enriched at the expense of the tenant.
Tenant's amended answer sets forth the affirmative defense of breach of warranty of habitability. Given the Civil Court's recently extended jurisdiction and equitable powers (CCA, §§ 110, 203, 905; see, also, L 1972, ch 982, § 1, subd [a]; Multiple Dwelling Law, § 302-a), we deem the defense a counterclaim or setoff against the rent claimed by landlord. The proof before the hearing officer supports his finding that the defense has been sustained. On the basis of the same evidence, we find that, by reason of landlord's violation of the warranty (see Javins v First Nat. Realty Corp., 428 F.2d 1071; Pines v Perssion, 14 Wis.2d 590; Marini v Ireland, 56 N.J. 130; Ann 40 ALR3d 646 and 1369), tenant suffered damages in the sum of $1,076.79. We set off these damages against the rent owed landlord (see CCA §§ 208, 905; Murphy v Serial Fed. Sav. Loan Assn., 30 Misc.2d 450, 454-455; Morbeth Realty Corp. v Velez, 73 Misc.2d 996, same case NYLJ, July 6, 1972, p 2, col 2; 500 West 174 St v Vasquez, 67 Misc.2d 993; Steinberg v Carreras, 74 Misc.2d 32; Morbeth Realty Corp. v Rosenshine, 67 Misc.2d 325). Landlord is thus entitled only to the reduced portion of the fund on deposit; and the balance of the fund was properly directed to be paid to the tenant.
Concur: MARKOWITZ, P.J., FRANK and DUDLEY, JJ.
Orders, entered March 29, 1974, affirmed, without costs.