Opinion
2003-401 S C.
Decided December 17, 2003.
Appeal by landlord from a final judgment of the District Court, Suffolk County (P. Hensley, J.), entered October 30, 2002, dismissing the petition.
Final judgment unanimously reversed without costs, petition reinstated, and new trial ordered.
PRESENT: DOYLE, P.J., WINICK and SKELOS, JJ.
In this nonpayment proceeding, the District Court awarded tenant a 100% abatement of the rent sought. However, the proof at trial was insufficient to sustain this award. Tenants general claims that the halls were "shot" and the windows broken are not sufficient to meet tenant's burden of establishing the extent of the breach of warranty. There must be detailed proof as to the nature and severity of the conditions complained of and the impact of the conditions upon tenant's use of the premises ( see e.g., 5001 15th Ave. Co. v. Klein, NYLJ, June 30, 2003 [App Term, 2d 11th Jud Dists]; Eke v. Ayanru, NYLJ, Mar. 20 2002 [App Term, 2d 11th Jud Dists]; Tenants Assn/Mutual Hous. Assn. HFDC v. Price, NYLJ, Dec. 30, 1999 [App Term, 1st Dept]). Thus, for example, it is unclear from the record whether tenant's claim that the windows were broken meant that they did not open properly or that they were cracked or missing. Similarly, tenant's claim that there was no heat in the upstairs area was not supported by proof, such as that of the outside and inside temperatures on specific days, that would allow the court to determine the extent of the deprivation. In this regard, we note that tenant commenced withholding rent in the month of September, when there may have not been a requirement that landlord provide heat. Moreover, a notice of violation, which may have been relied upon by the trial court, was not entered into evidence. Under the circumstances, the appropriate amount of the abatement can not be determined on this record, and a new trial is ordered.