Opinion
570851/03.
Decided May 23, 2005.
Respondent Rosenblum, as limited by his briefs, appeals from so much of a final judgment of the Civil Court, New York County, entered May 30, 2003 after a nonjury trial (Maria Milin, J.) as limited his recovery on his habitability counterclaim to the sum of $7,500.
Final judgment entered May 30, 2003 (Maria Milin, J.) modified to increase respondent Rosenblum's recovery on his habitability counterclaim to $22,500, thereby reducing the petitioner's rent recovery to the principal sum of $69,500; as modified, order affirmed, without costs.
PRESENT: HON. LUCINDO SUAREZ, P.J., HON. PHYLLIS GANGEL-JACOB, HON. MARTIN SCHOENFELD, Justices.
Respondent Rosenblum, as subtenant, properly asserted the warranty of habitability as a defense to the nonpayment claim asserted by petitioner, the individual unit owner of the subject condominium apartment ( see Wright v. Catoendix Corp., 248 AD2d 186), and the trial court's fact-laden determination that the warranty was breached by "construction and renovation work" which deprived the subtenant's spouse and infant children of the use and enjoyment of the condominium apartment represents a fair interpretation of the evidence. With respect to the amount of the rent abatement, the evidence reflects a substantial diminution of the value of the apartment due to what the trial court reasonably found to be "vexatious" noise, vibrations, and dust caused by jackhammering and other daytime construction activities in the building premises. Given the severity of the conditions and the largely unrefuted evidence elicited by the subtenant as to how long the conditions persisted, a 25 per cent rent abatement of rent for the period from July 2002 through December 2002 more closely represents "the difference between the fair market value of the premises if they had been as warranted, as measured by the rent reserved under the lease, and the value of the premiss during the period of the breach" ( Park West Mgt. Corp. v. Mitchell, 47 NY2d 316, 329; see also Matter of Nostrand Gardens Co-Op v. Howard, 221 AD2d 637, 638).
This constitutes the decision and order of the court.