Fermaglich v. Warshawiak

• Decision Date: 21 February 1964
• Parties: Harry B. FERMAGLICH and Iris L. Fermaglich, Plaintiffs, v. Leon WARSHAWIAK and Regina Warshawiak, Defendants.
• Court: New York County Court

Page 963

249 N.Y.S.2d 963

42 Misc.2d 1077

Harry B. FERMAGLICH and Iris L. Fermaglich, Plaintiffs, v. Leon WARSHAWIAK and Regina Warshawiak, Defendants.

Rockland County Court.

Feb. 21, 1964.

Etelson & Fassberg, Spring Valley, for

Schwartz, Kobb, Freilich & Scheinert, Spring Valley, for defendants.

HERBERT E. HENION, Judge.

Motion by the plaintiffs, hereinafter designated as landlords, for an order directing summary judgment against the defendants, hereinafter designated as tenants. The action is based on a claim for rent due, and a pro rata share of a bill for water charges pursuant to the terms of a lease. The lease bears the date of January 17, 1962, and provides for the rental of the second floor apartment in a private dwelling for a sixteen (16) month period. The tenants entered into possession on February 1, 1962. Approximately six weeks later, and on March 13, 1962 the attorneys for the tenants addressed a letter to the landlords complaining that the heating system was inadequate, that there were window drafts, and the premises lacked insulation; that consequently the premises were 'untenantable'; the letter sought the exchange of general releases between the parties.

The attorneys for the landlords, by letter of March 14, 1962 which, while denying the complaints and assertions in the tenants' letter, offered to accept from the tenants a surrender of the premises. The tenants were granted permission to vacate either on or before April 1, 1962, or at the end of the month of April 1962. It is a fact not disputed that the tenants did not act on the consent of the landlords to accept surrender of the demised premises. It does not appear any further action on the offer of mutual recission was taken by the tenants, and it is conceded they continued in possession until sometime in August 1962. The landlords instituted suit in the Justice Court of the Town of Ramapo and after trial recovered judgment for the same relief herein sought. The tenants thereupon appealed and now seek to have the issues re-tried de nove in this court.

The tenants assert by way of defense (1) that there must be read in the lease an implied obligation by the landlords to furnish sufficient heat, and that the claimed failure to perform that duty breached the lease agreement, thereby resulting in a constructive eviction; (2) that the landlords fraudulently represented that the premises were 'warm, habitable' and 'tenantable'; the classic elements of fraud are set forth; however, while there is a claim of detriment, it is not specified, nor is there set forth either in the answer or the tenants' bill of particulars in what respect the tenants were harmed; (3) the remaining defenses set up a failure and refusal of the landlords to use reasonable efforts to relet the premises and thus minimize damages. There is also interposed as a partial defense the deposit of one month's rent, which security the landlords still retain.

Considering the defenses in order; the contention of an implied covenant to furnish heat that forms the first defense is not supported by the facts in the record and the law. The lease in question is a standard form of apartment lease, it is printed and contains thirteen (13) provisions followed by five (5) typed provisions. One looks in vain for any clause or covenant in the agreement by which either, expressly or impliedly, the landlords could be deemed to have contracted to furnish any type or quantity of heat; nor is there mention of any promise to weatherstrip or repair windows, or insulate the premises. The written lease is neither uncertain or ambiguous; it is devoid of any phrase or sentence from which the implication could be drawn that the subject of heat was discussed by the parties.

The authorities uniformly hold that the implication sought to be drawn here by the tenants may not be so inferred. Rasch 'Landlord and Tenant', Vol. 1, § 498, page 435, states:

'It is a universal rule' said Earl, J., 'to which no exception can be found in any case now regarded as authority, that upon the demise of real estate there is no implied warranty that the property is fit for occupation, or suitable for the use or purpose for which it is hired.' (Citing cases)

and at page 436:

'In other words a rule similar to that of CAVEAT EMPTOR applies to leasing of real property and throws upon a tenant the responsibility of examining the demised premises for defects, and providing against their consequences before he enters into the lease. A tenant assumes all of the risks arising from the condition of the premises at the inception of the lease, unless he has an express agreement on the part of his landlord in relation thereto.' See also Richmond v. Lee, 123 App.Div. 279, 281, 107 N.Y.S. 1072, 1073; Jackson v. Paterno, 58 Misc. 201, 108 N.Y.S. 1073; Martens v. Sloane, 132 App.Div. 114, 116 N.Y.S. 512.

The memorandum submitted by the attorneys for the tenants on this motion contains cases which are readily distinguishable from the instant case. The distinction being that the subject apartment was not heated by a central heating plant within the exclusive control of the landlords. In such situation the lease would carry the implied obligation to have the premises...