Opinion
570168/03.
Decided February 5, 2004.
Landlord appeals from so much of a final judgment of the Civil Court, New York County, entered March 28, 2002 after trial (Dawn M. Jimenez, J.) as granted tenants a rent abatement of ten per cent in a nonpayment summary proceeding, and denied his application for attorneys' fees. Tenants cross-appeal from the aforesaid judgment to the extent the rent abatement was limited to ten per cent and their application for attorneys' fees was denied.
Final judgment entered March 28, 2002 (Dawn M. Jimenez, J.) modified only to the extent of increasing the amount of tenants' recovery on the rent abatement to the sum of $6,610.16, thereby reducing the net money judgment for rent to the sum of $32,054.51; as modified, final judgment affirmed, without costs.
PRESENT: HON. LUCINDO SUAREZ, P.J., HON. WILLIAM J. DAVIS, HON. MARTIN SCHOENFELD, Justices.
There is ample evidence to sustain the Civil Court's finding that the recurrent heating and air conditioning problems in tenants' apartment over a period of more than eight years constituted a breach of the warranty of habitability (Real Property Law § 235-b). Upon our review we find that the percentage of the abatement was within reasonable limits. The amount of the award is modified only to the extent of calculating the abatement based upon the total of the outstanding arrears (without deduction for certain credits due to the tenants) as stipulated prior to trial. With respect to each party's claim for attorneys' fees, we agree that the mixed outcome of this litigation was not "substantially favorable" to either side (see, Walentas v. Johnes, 257 AD2d 352, 354; Solow v. Bradley, 273 AD2d 75) and that neither should be accorded the status of a prevailing party.
This constitutes the decision and order of the court.