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Isaacs v. Jefferson Tenants Corp.

Appellate Term of the Supreme Court of New York, First Department
Dec 7, 2005
2005 N.Y. Slip Op. 51982 (N.Y. App. Term 2005)

Opinion

570119/04.

Decided December 7, 2005.

Defendants appeal, as limited by their briefs, from so much of a judgment of the Civil Court, New York County (Eileen A. Rakower, J.), entered November 2, 2001 after a jury trial, as awarded plaintiff an aggregate recovery of damages in the principal amount of $114,080. Plaintiff cross-appeals, as limited by his briefs, from that portion of the aforesaid judgment which measured his recovery of prejudgment interest to August 26, 1998 and limited his recovery of attorney's fees to the principal sum of $6,350.

Judgment (Eileen A. Rakower, J., and jury), entered November 2, 2001, modified by vacating the jury verdict as to damages and directing a new trial solely on the issue of damages, unless plaintiff, within 20 days after service upon defendants' attorneys of a copy of this order with notice of entry, consents to the entry of a judgment with damages reduced to the principal amounts of $4,685 in property damages and $25,258 as a rent abatement, in which event the Clerk is directed to enter judgment in accordance with the verdict as so reduced; as modified, judgment affirmed, without costs.

PRESENT: Suarez, P.J., Davis, Schoenfeld, JJ.


Plaintiff commenced this plenary action to recover for breach of the warranty of habitability (Real Property Law § 235-b), for negligent infliction of emotional distress, and for property damage caused by defendants' failure to adequately repair recurring water leaks into his apartment. The damage awards issued by the jury, the equivalent of a 37% rent abatement for the period October 1985 — March 1991 and a 100% rent abatement for the period February 1995 — August 1999, were clearly excessive. Upon our review of the record, we conclude that a 25% rent abatement for all relevant periods more accurately reflects "the difference between the maintenance paid by plaintiff and the rental value of the premises during the period of the breach" ( Mastrangelo v. Five Riverside Corp., 262 AD2d 218).

With respect to plaintiff's claim for negligent infliction of emotional distress, no showing was made that defendants unreasonably endangered plaintiff's physical safety or caused him to fear for his safety ( see Sheila C. v. Povich, 11 AD3d 129, 130). Recovery for emotional distress may not be based upon the mere observation of damage to one's apartment or personal property ( see O'Connor v. 72 Street East Corp., 224 AD2d 246, 247). Thus, the non-rent aspect of the compensatory award must be limited to the amount ($4,685) of property damage established by plaintiff.

We have considered the parties' other arguments for affirmative relief and find them unavailing.

This constitutes the decision and order of the court.


Summaries of

Isaacs v. Jefferson Tenants Corp.

Appellate Term of the Supreme Court of New York, First Department
Dec 7, 2005
2005 N.Y. Slip Op. 51982 (N.Y. App. Term 2005)
Case details for

Isaacs v. Jefferson Tenants Corp.

Case Details

Full title:HERBERT L. ISAACS, Plaintiff-Respondent, v. JEFFERSON TENANTS CORP. and…

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

Date published: Dec 7, 2005

Citations

2005 N.Y. Slip Op. 51982 (N.Y. App. Term 2005)
809 N.Y.S.2d 481