| Rush Realty Assoc. LLC v Weston |
| 2003 NY Slip Op 51591(U) |
| Decided on November 21, 2003 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the Official Reports. |
Appellant.
Appeal by tenant from a final judgment of the Civil Court, Kings County (G. Lebovits, J.), entered on April 15, 2002, awarding landlord possession and the sum of $2,528.62.
Final judgment unanimously reversed without costs and matter remanded to the court below for a new trial.
In this nonpayment proceeding, after trial, the court below found that the tenant's claims for breach of warranty of habitability, relating to heat, hot water, elevator service and noise, were barred by the doctrine of collateral estoppel since she asserted the same claims in several proceedings before the Division of Housing and Community Renewal ("DHCR") and was awarded a 10% reduction in rent by DHCR in connection with one of her claims concerning the lack of hot water. While a determination by DHCR after a hearing will have the effect of establishing, for purposes of collateral estoppel, the conditions found to exist warranting a reduction of rent (Lorcorp, Inc. v Burke, 185 Misc 2d 720, 722) , a tenant is not barred from asserting a claim for breach of warranty of habitability upon the same conditions (Real Property Law § 235-b [3] [c]; see Lorcorp, Inc., 185 Misc 2d at 723). On the record before us, we cannot determine that DHCR made findings regarding the conditions of the premises relating to the claims asserted herein by tenant for breach of warranty of habitability. Moreover, tenant would not be barred by the doctrine of collateral estoppel from asserting a claim for breach of warranty of habitability even where DHCR awarded tenant a rent reduction which relates to one or more matters for which relief is sought herein (Real Property Law § 235-b [31 [c]). However, the amount awarded in an action for breach of warranty of habitability must be reduced by the amount of any rent reduction ordered by DHCR (Real Property Law § 235-b [3] [c]). Thus, the statute does not prohibit tenant from obtaining two remedies. It merely limits a tenant's award for [*2]an abatement when there was also a rent reduction ordered by DHCR which relate to the matters asserted in the tenant's claim for breach of warranty of habitability (id.)
Decision Date: November 21, 2003