Opinion
September 23, 1997
Appeal from Supreme Court, First Department (Parness, J. P., McCooe and Freidmann, JJ.).
Petitioner did not have a duty to mitigate the amount of unpaid maintenance by processing respondent's application for section 8 benefits while respondent's application to become a successor tenant was pending before the Department of Housing Preservation and Development. A section 8 application would be premature until such time as respondent achieves the status of tenant. In the meantime she is liable for use and occupancy equal to the maintenance paid by the prior tenant (28 RCNY 3-02 [p] [8] [iii]). Respondent's unresolved status also renders premature her claim that she was constructively evicted by what she characterizes as petitioner's "constant stream of admonishments" that she had no right to remain in the apartment; in any event, such admonishments, assuming their accuracy as described by respondent, do not amount to a constructive eviction.
Concur — Sullivan, J.P., Ellerin, Nardelli, Williams and Andrias, JJ.