Opinion
No. 2011–2632 N C.
2012-11-7
UPPER EAST LEASE ASSOCIATES, LLC, Appellant, v. Danielle CANNON, Respondent.
Present: NICOLAI, P.J., IANNACCI and LaSALLE, JJ.
Appeal from a judgment of the District Court of Nassau County, First District (Michael A. Ciaffa, J.; op 30 Misc.3d 1213[A], 2011 N.Y. Slip 50054 [U] ), entered September 6, 2011. The judgment, insofar as appealed from, after a nonjury trial, dismissed the complaint.
ORDERED that the judgment, insofar as appealed from, is affirmed, without costs.
In this action to recover rent arrears, plaintiff appeals from so much of a judgment as, after a nonjury trial, dismissed the complaint. We affirm.
Upon the testimony and documentary evidence introduced at trial, the District Court could properly find that defendant was constructively evicted from the apartment in question as the result of a second-hand smoke condition ( see Barash v. Pennsylvania Term. Real Estate Corp., 26 N.Y.2d 77, 83 [1970];Reinhard v. Connaught Tower Corp. 2011 N.Y. Slip Op 33101[U] [Sup Ct, N.Y. County 2011]; Poyck v. Bryant, 13 Misc.3d 699 [Civ Ct, N.Y. County 2006] ). In addition, the court's award to defendant of a graduated abatement of rent for the months prior to her abandonment of the apartment was not unwarranted in view of the increasing severity of the smoke condition ( see Park W. Mgt. Corp. v. Mitchell, 47 N.Y.2d 316 [1979] ). Accordingly, the judgment, insofar as appealed from, is affirmed.