266 A.D.2d 45, *; 698 N.Y.S.2d 20, **;
1999 N.Y. App. Div. LEXIS 11380, ***
Frances Leventritt, Appellant, v. 520 East 86th Street, Inc., Respondent.
Frances Leventritt, Appellant, v. Carolyn Eckstein et al., Respondents.
2274-2274A
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
266 A.D.2d 45; 698 N.Y.S.2d 20; 1999 N.Y. App. Div. LEXIS 11380
November 9, 1999, Decided
November 9, 1999, Entered
CASE SUMMARY
PROCEDURAL POSTURE: Plaintiff appealed the judgment of the Supreme Court, New York County (New York) holding that defendant did not unreasonably delay its performance of a stipulation; plaintiff's damages on the first cause of action were covered by the stipulation, dismissing other causes of actions and denying her application for attorney fees.
OVERVIEW: The trial court properly found that damages caused by defendant's breach of its warranty of habitability during the period from November 1988 to December 1990 were subsumed within the parties' April 15, 1988 stipulation of settlement, which provided that plaintiff would receive a 50% maintenance abatement from May 1988 until all repairs were completed, and a $ 56,000 property damage award, in exchange for discontinuing her causes of action. The judgment was not substantially favorable to plaintiff, nor did she win substantial relief. Plaintiff was not entitled to compensation for defendants' breach of warranty of habitability during a period in which plaintiff did not live in the apartment. The amount of plaintiff's damages for defendant's breach of the warranty of habitability pursuant to N.Y. Real Prop. Law §235-b was the difference between the maintenance paid by plaintiff and the rental value of the premises during the breach period.
OUTCOME: Judgment affirmed; damages caused by defendant's breach of its warranty of habitability were subsumed with the April 15, 1988 stipulation of settlement; plaintiff was not entitled to compensation for defendants' breach of warranty of habitability during a period in which plaintiff did not live in apartment.
LexisNexis(R) Headnotes Hide Headnotes
Real & Personal Property Law > Landlord & Tenant
HN1 The amount of a plaintiff's damages for a defendant's breach of the warranty of habitability pursuant to N.Y. Real Prop. Law §235-b is the difference between the maintenance paid by plaintiff and the rental value of the premises during the period of the breach. More Like This Headnote
COUNSEL: [***1] For Plaintiff-Appellant: Sidney Bender.
For Defendant-Respondent: Robert I. Cantor.
For Plaintiff-Appellant: Sidney Bender.
For Defendants-Respondents: Robert I. Cantor, William S. Greenawalt.
JUDGES: Concur--Nardelli, J. P., Tom, Mazzarelli, Wallach and Buckley, JJ.
OPINION: [*45] [**21] Order, Supreme Court, New York County (Stephen Crane, J.), entered March 27, 1998, after a nonjury trial, which, inter alia, held that defendant 520 East 86th Street did not unreasonably delay its performance of a stipulation dated April 15, 1988, and order and judgment (one paper), same court and Justice, entered on or about December 31, 1997, after a nonjury trial, which, inter alia, held that plaintiff's damages on the first cause of action were covered by the April 15, 1988 stipulation, dismissed her second through thirteenth causes of action, and denied plaintiff's application for attorney's fees, unanimously affirmed, without costs.
The trial court properly found that the damages caused by defendant 520 East 86th Street's breach of its warranty of habitability during the period from November 1988 to December 1990 were subsumed within the parties April 15, 1988 stipulation [***2] of settlement, which provided that plaintiff would receive a 50% maintenance abatement from May 1988 until all repairs were completed, and a $ 56,000 property damage award, in exchange for discontinuing her causes of action.
Since plaintiff gained nothing from the present litigation, it cannot be said that the judgment was "substantially favorable" to her (Walentas v Johnes, 257 AD2d 352, 354, lv dismissed 93 NY2d 958), or that plaintiff won " 'substantial relief' " (Senfeld v I.S.T.A. Holding Co., 235 AD2d 345, lv denied 92 NY2d 818), so as to warrant an award of attorney's fees in her favor. Nor was plaintiff entitled to compensation for defendant's breach of [*46] the warranty of habitability during a period in which plaintiff did not live in the apartment (see, Halkedis v Two E. End Ave. Apt. Corp., 161 AD2d 281, lv denied 76 NY2d 711). The trial court properly held that HN1the amount of plaintiff's damages for defendant's breach of the warranty of habitability pursuant to Real Property [***3] Law § 235-b was the difference between the maintenance paid by plaintiff and the rental value of the premises during the period of the breach (Mastrangelo v Five Riverside Corp., 262 AD2d 218).
We have reviewed plaintiff's remaining contentions and find them unavailing.
Concur--Nardelli, J. P., Tom, Mazzarelli, Wallach and Buckley, JJ.