Decided on December 19, 2013SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENTPRESENT: Shulman, J.P., Hunter, Jr., Torres, JJ13-340.
Westhattan Corp., Petitioner-Landlord-Appellant,
against
Timothy Wong, Respondent-Tenant-Respondent.
Landlord appeals from a final judgment of the Civil Court of the City of New York, New York County (Jack Stoller, J.), after a nonjury trial, entered on or about April 15, 2013, which dismissed the petition in a nonpayment summary proceeding, and awarded tenant a net money judgment in the principal sum of $6,535.78 on his first and second counterclaims.
Per Curiam.
Final judgment (Jack Stoller, J.), entered on or about April 15, 2013, affirmed, with $25 costs.
Upon review of the trial record, we are satisfied that the trial court properly resolved the rent and habitability issues litigated below, and that a decrease in the amount of the abatement awards in tenant’s favor is unwarranted. The credited testimony and photographic evidence amply supported the court’s detailed factual findings that tenant was subjected to recurrent leaks in his apartment over a period of approximately three years – resulting on one occasion in the collapse of the living room ceiling – as well as rodent infestation, a broken front door and kitchen window, and persistent heating problems. The evidence further established that landlord had notice of the complained of apartment conditions, especially in view of the negative inference arising from landlord’s failure to produce the building superintendent as a witness (see 318 East 93, LLC v Ward, 276 AD2d 277, 278 [2000]), and landlord’s own acknowledged deficiencies in its system of recording tenant complaints. The amount of the habitability abatement, although substantial, was within reasonable limits, given the severity of the conditions and the largely unrefuted evidence elicited by the tenant as to the duration of the conditions (see Park W. Mgt. Corp. v Mitchell, 47 NY2d 316 [1979], cert denied 444 US 992 [1979]; see also Dumbadze v Saxon Hall Owner, LLC, 93 AD3d 756 [2012]).
The record also supports the court’s express finding that tenant was constructively evicted from the premises for the 20-day period following the collapse of the living room ceiling. Contrary to landlord’s claim, the parties’ January 15, 2013 stipulation – covering “hotel expenses, meals, repair[s]” – should not be read so broadly as to preclude the trial court from suspending tenant’s obligation to pay rent for the period of the constructive eviction, a remedy otherwise [*2]shown to be warranted in the circumstances here present.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.I concur I concur I concurDecision Date: December 19, 2013
...
