Opinion
December 14, 1993
Appeal from the Supreme Court, New York County (Alfred Toker, J.).
The defendant tenant's claim of a constructive eviction is without merit. The defendant tenant's own testimony reflects that a one time occurrence of smoke prompted her to vacate her apartment. This single day of inconvenience does not amount to a substantial and material deprivation of use and enjoyment of the premises (Barash v Pennsylvania Term. Real Estate Corp., 26 N.Y.2d 77, 83). Further, the tenant did not abandon possession of the apartment because of the building's allegedly deteriorating condition. She and her husband stayed in the apartment "from time to time" before the day of the smoke condition.
It is also clear that the allegedly deteriorating conditions in the building and the smoke condition did not cause the defendant mental anguish (see, Couri v Westchester Country Club, 186 A.D.2d 712, 715, lv dismissed in part and denied in part 81 N.Y.2d 912). The defendant, who returned to the apartment from time to time before the single day of inconvenience, presented no proof of injury.
Defendant tenant's claim that a procedural error was committed by granting the landlord a judgment of possession where such relief was not sought in the landlord's complaint is without merit. The court was free to grant any type of relief within its jurisdiction appropriate to the proof whether or not expressly demanded (43 N.Y. Jur 2d, Declaratory Judgments, § 58).
Concur — Ellerin, J.P., Kupferman, Rubin and Nardelli, JJ.