| Mazzurco v Wisniewski |
| 2006 NY Slip Op 51046(U) [12 Misc 3d 130(A)] |
| Decided on June 2, 2006 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal from a final judgment of the District Court of Suffolk County, Sixth District (Toni A. Bean, J.), entered December 6, 2004. The final judgment, after a nonjury trial, awarded landlord possession and the sum of $3,558 in a nonpayment summary proceeding.
Final judgment reversed without costs and a new trial ordered.
Having permitted tenants to interpose a counterclaim for breach of the warranty of habitability, it was error for the court to limit the proof which tenants could introduce in support of the counterclaim to the months for which landlord sought arrears (see Sanchez v Badami, NYLJ, July 8, 1991 [App Term, 9th & 10th Jud Dists]; 350 Assoc. v Feldman, NYLJ, Dec. 18, 1978 [App Term, 1st Dept]). Under the circumstances, a new trial is required. In view of the foregoing, we need not reach the remaining issues raised.
Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: June 2, 2006