Maryanov v. Peters

• Citation: 96 Misc.2d 773,409 N.Y.S.2d 691
• Parties: David MARYANOV, as Attorney for David Maryanov, Petitioner, v. Paletta PETERS, Respondent.
• Decision Date: 25 October 1978
• Court: New York City Court

Page 691

409 N.Y.S.2d 691

96 Misc.2d 773

David MARYANOV, as Attorney for David Maryanov, Petitioner, v. Paletta PETERS, Respondent.

Civil Court of the City of New York, Trial Term, New York County, Part 30.

Oct. 25, 1978.

John Falk and Deborah Rand, New York City, for respondent.

David Maryanov, petitioner pro se.

RICHARD S. LANE, Judge.

When the warranty of habitability (Real Property Law, Section 235-b) is used defensively, conventional wisdom designates it as an affirmative defense and assigns the burden of proof to tenant asserting the breach thereof; Bianchi v. Ficoratto, 83 Misc.2d 996, 373 N.Y.S.2d 946; see Houston Realty Corp. v. Castro, 94 Misc.2d 115, 118, 404 N.Y.S.2d 796, 798.

Tenant, in this non-payment summary proceeding tried before me and a jury, challenges that conventional wisdom. Preliminarily she moved to dismiss the petition for failure to allege compliance with the warranty, upon which motion I reserved. Thereafter, she requested jury instructions placing the burden of proof on landlord to show compliance with the warranty.

That conventional wisdom has to be in error. It is belied by the very objective of the warranty as it evolved slowly in this Court and as it is now codified in statute to render the previously independent covenant to pay rent dependent on the implied covenant to furnish reasonably decent and safe housing. A lease today is to be approached essentially as a contract with mutually dependent obligations; see Park West Mgt. v. Mitchell, 62 A.D.2d 291, 294-5, 404 N.Y.S.2d 115, 117-8; see Tonetti v. Penati, 48 A.D.2d 25, 29, 367 N.Y.S.2d 804, 807; see Lefrak v. Lambert, 89 Misc.2d 197, 201-2, 390 N.Y.S.2d 959, 961-2. Pursuing the contract analogy, landlord may not recover rent or possession unless and until he has proven performance of all the obligations on his part to be performed, including compliance with the warranty; Covington v. McKeiver, 88 Misc.2d 1000, 390 N.Y.S.2d 502.

Should I now take the further jump sought by tenant, and hold, as did my colleague, Hon. Leonard Cohen, in Houston Realty Corp. v. Castro, supra, that landlord is required to allege compliance in his petition? Arguably, following Judge Cohen, compliance could be treated as one of the essential facts upon which the proceeding is based; RPAPL, Section 741(4). I decline to follow, because to do so would operate unnecessarily in many instances to jeopardize the summary nature of summary proceedings. The issue of compliance would be...