Opinion
May 19, 1966
Appeal from the Civil Court of the City of New York, ROBERT V. SANTANGELO, J.
Newman, Aronson Neumann ( Mannis Neumann of counsel), for appellant-respondent.
Arthur Sherr and Henry Mark Holzer for respondent-appellant.
The mere refusal to install a new lock, after a burglary, followed immediately by oral notification, by a tenant (defendant), that she intended to vacate her apartment at the end of the month, does not constitute a constructive eviction. The plaintiff landlord, therefore, is entitled to recover the rent due ($110.88) for October, 1963, as well as the rent for September, 1963, awarded to it by the lower court.
The trial court did not abuse its discretion in permitting plaintiff to amend its complaint to include a claim for an attorney's fee based upon the provisions of the lease between the parties. The award of $200 for such fee is justified by the record.
The judgment should be modified by increasing the recovery thereof by the sum of $110.88 and, as modified, affirmed, with $25 costs to plaintiff-respondent-appellant.
Concur — GOLD, J.P., CAPOZZOLI and HECHT, JJ.
Judgment modified, etc.