Nostrand Gardens Co-Op v. Howard

• Decision Date: 27 November 1995
• Docket Number: CO-O,A
• Citation: 221 A.D.2d 637,634 N.Y.S.2d 505
• Parties: In the Matter of NOSTRAND GARDENSppellant, v. Pauline HOWARD, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 505

634 N.Y.S.2d 505

221 A.D.2d 637

In the Matter of NOSTRAND GARDENS CO-OP, Appellant, v. Pauline HOWARD, et al., Respondents.

Supreme Court, Appellate Division Second Department.

Nov. 27, 1995.

Jacobs, Zinns & Braff, P.C., New York City (Jay Zinns, Jay H. Berg, and Michael H. Michael, of counsel), for appellant.

Z. Robert Jankowski, Brooklyn, for respondents.

Before SULLIVAN, J.P., and THOMPSON, HART and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

In a summary proceeding to recover possession of real property and rent arrears, the petitioner landlord appeals, by permission, on the ground of inadequacy, from an order of the Appellate Term of the Supreme Court for the Second and Eleventh Judicial Districts, dated October 29, 1993, affirming a judgment of the Civil Court, Kings County (Knipel, J.), dated April 15, 1992, which after a nonjury trial finding that it had breached the warranty of habitability and that the respondents were entitled to a 50% abatement of the rent, is in its favor and against the respondents in the principal sum of only $1,351.04.

ORDERED that the order is affirmed, with costs.

Contrary to the petitioner's contention there is sufficient evidence in the record to sustain the trial court's determination that it breached the warranty of habitability by depriving the respondents of the quiet enjoyment of their apartment. The record reveals that there was excessive noise emanating from an apartment that neighbored the respondents' apartment through the late night and early morning hours (see, Sutton Fifty-Six Co. v. Garrison, 93 A.D.2d 720, 461 N.Y.S.2d 14) and that the petitioner, despite having ample notice, failed to take any effective steps to abate the nuisance (see, Park West Mgt. Corp. v. Mitchell, 47 N.Y.2d 316, 418 N.Y.S.2d 310, 391 N.E.2d 1288, cert. denied 444 U.S. 992, 100 S.Ct. 523, 62 L.Ed.2d 421; Cohen v. Werner, 82 Misc.2d 295, 368 N.Y.S.2d 1005, affd 85 Misc.2d 341, 378 N.Y.S.2d 868).

One of the remedies that is available to a tenant for a landlord's violation of the warranty of habitability is an abatement of the rent, and the proper measure of damages is the difference between the fair market value of the premises if they had been as warranted and the value of the premises during the period of the breach (see, Park West Mgt. Corp. v. Mitchell, supra ). In this case, the respondents produced evidence regarding the nature, scope, and duration of the breach and the effectiveness of measures that were...