Tenant appeals from a final judgment of the Civil Court, New York County (Laurie L. Lau, J.), entered January 21, 2005, which awarded landlord possession and a recovery of $10,031.23 in maintenance arrears in a nonpayment summary proceeding, and which brings up for review an order (same court and Judge), dated January 21, 2005, which denied tenant's motion to amend her answer and granted landlord's motion for summary judgment on the petition.

PER CURIAM:

Final judgment (Laurie L. Lau, J.), entered January 21, 2005), reversed with $25 costs, tenant's motion to amend the complaint to add an affirmative defense and counterclaim for breach of habitability based on a mold condition is granted, landlord's motion for summary judgment denied, and the matter remanded for further proceedings.

Tenant's affirmative defense and counterclaim for breach of habitability based on a newly discovered mold condition in her apartment was not precluded by the terms of the June 2003 stipulation settling a prior nonpayment proceeding. The stipulation, intended to settle the proceeding and "all present controversies between the parties," expressly covered the "currently needed repairs" relating to existing water damage, and required landlord to obtain an estimate from a contractor to "scrape, plaster and prime coat all water damaged surfaces" in the apartment. The stipulation made no reference to any mold condition and expressly required tenant to notify the landlord, within two business days of discovery, of any other condition which required repair or maintenance. Thus, we reject landlord's interpretation of the stipulation as precluding tenant from alleging a mold condition, which even if caused by the water damage, constitutes a separate and distinct claim (see Bruce v College Properties, Inc., 10 AD3d 538 [2004]). Notably, the mold condition allegedly emanated from the interior space behind the walls in tenant's bedroom, and was exposed in August 2004, after landlord opened the wall to inspect a water leak. Since the plain language of the stipulation does not express an intent to cover claims for future conditions (see Lefrak SBN Associates v Kennedy Galleries, Inc., 203 AD2d 256 [1994]), tenant should have been granted leave to amend her answer to assert an affirmative [*2]defense and counterclaim for breach of warranty of habitability based on the mold condition.

This constitutes the decision and order of the court.
I concurI concur
Decision Date: April 21, 2006