The plaintiff filed an action against the defendant in the Small

Claims Part of Webster Town Court on June 18, 2006 in the amount of $2,358.00. The

plaintiff's handwritten claim stated "The tenant did not pay rent for full term of lease and minor

repairs that needed to be done".^[FN1] The matter was originally set down to be heard on July 31,

2006 at 6:00 P.M. At the request of the defendant the case was adjourned to September 25,

2006 at 6:00 P.M. However, the court received various requests for adjournments and the

matter was eventually set down for a trial on February 7, 2007 at 6:00 P.M. In the meantime, the

defendant filed a counterclaim with the court dated November 27, 2006, wherein she made three

claims. First that she was entitled to the return of her deposit of $875.00. Second, that the

plaintiff breached the lease, causing a constructive eviction. Third, she demanded a judgment of

$3,500.00 for the rent paid by the defendant to date. This last claim was withdrawn on the night

of the trial. In addition, both parties hired counsel to represent them in this small claims matter.

Plaintiff's counsel filed a formal Notice of Appearance with the Court, dated December 18, 2006.

Defense counsel sent a letter, dated August 25, 2006, indicating his representation of the

defendant.

On the evening of trial, the plaintiff's counsel submitted a "Memorandum of Law in

Support of Plaintiff's Motion in Limine", requesting that defendant's counterclaim be dismissed

in total and that the court forbid the defendant from offering proof in support thereof. As

previously indicated, defendant withdrew her counterclaim relative to a request for $3,500.00 in

damages. However, defendant's claim of constructive eviction remained an issue before the

court. At the trial both parties put on their respective cases with the assistance of counsel.

Facts of the Case.

1. The parties entered into a written lease for the period January 8, 2005 through January

7, 2006 for property located at 476 ½ Ridge Road, Webster, New York 14580.

2. The agreed upon rent was $675.00 per month.

3The defendant gave the plaintiff a deposit of $875.00.

4. The defendant abandoned the property prior to the end of the lease. Thus the rent for

October, November and December was not paid, leaving a balance claimed by the plaintiff of

($675.00 x 3) $2,025.00 plus late fees ($50.00/month for 3 months) of $150.00 for a total of

$2,175.00.

5. The defendant contends that she was constructively evicted from the premises,

which absolved her from any responsibility for the payment of the rent for said last three months

of the lease.

6. The defendant contends that the plaintiff violated the covenant of habitability. [*2]

7. The defendant married and purchased a new home upon vacating the premises.

8. Plaintiff incurred damages in the amount of $25.30 for expenses incurred in

advertising for a new tenant.^[FN2]

Issues Presented.

Was the defendant constructively evicted from the premises?

Was a covenant of habitability established by the lease agreement breached?

Does the landlord have a duty to mitigate his damages upon the abandonment of the

premises prior to the end of the lease or is he entitled to the balance owed to him under the lease?

Did the plaintiff wrongfully refuse to sublet the property?

Is the defendant entitled to return of her security deposit?

Legal Analysis

A. Constructive Eviction.

The evidence does not support an argument that the defendant was constructively evicted.

A constructive eviction is not the result of minor inconveniences or minor defects in the leased

premises. In order for a court to determine that a tenant was constructively evicted from the

premises, there must be a substantial defect in the premises, that so adversely affects the very

essence of the rental agreement between the parties, that it would be unreasonable to require the

tenant to remain in the premises. It has been held that

"... constructive eviction exists, where although there has been no physical expulsion or exclusion of the tenant, the landlord's wrongful acts substantially and materially deprive the tenant of the beneficial use and enjoyment of the premises.... The tenant, however, must abandon possession in order to claim that there was a constructive eviction." Barash v. Pennsylvania [*3]Terminal Real Estate Corp. (1970) 26 NY2d 77, 82, 256 NE2d 707, 709.

Therefore, the test for constructive abandonment is a two-pronged one. The mere

abandonment of the premises prior to the end of the term of the tenancy by the tenant is not

sufficient to establish "constructive eviction." In addition the abandonment of the property must

be in close proximity to the alleged defective condition. It must not be after the fact. In this

case the defendant argued that she was without a stove for approximately two months. However,

she did not move out during that time. The defendant complained that the apartment was cold,

but did not move out till the following fall. The defendant argued that the porch contained the

property of the plaintiff during the initial period of the lease, but did not move out until long after

the plaintiff's property was removed from that portion of the premises.

B. Covenant of Habitability

The plaintiff contends that the court could not entertain any testimony on the issue of

the "Covenant of Habitability", since it was not raised in the defendant's counterclaim. Even

discounting the relaxed pleading permitted in small claims matters, it was proper to permit the

defendant to address this issue at the time of trial.

"The statutory warranty of habitability is presumed to be present in every residential lease, written or oral, and it is unnecessary to plead the warranty in a petition for summary proceedings. A claim of breach of the statutory warranty of habitability alleging adverse impact upon the tenant's life due to the conditions of the premises is sufficient to withstand a motion to dismiss the complaint for failure to state a cause of action since the statutory warranty is deemed to covenant that occupants must not be subjected to conditions that are detrimental to their lives, and adverse impact is substantially equivalent to the statutory language." 4 Carmody-Wait 2d 29:139.

"... that the premises so leased or rented and all areas used in connection therewith in common with other tenants or residents are fit for human habitation and for the uses [*4]reasonably intended by the parties and the occupants of such premises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety."

C. Mitigation of Damages.

The defendant herein argues that the landlord had a duty to mitigate his damages.The

law in New York is well established that there is no such duty. That principal has certainly been

followed in the Fourth Department since Centurian Development Ltd. v. Kenford Co., Inc. (4th

Dept. 1977) 60 AD2d 96, 400 NYS2d 263, albeit that case dealt with a commercial lease.

Nevertheless, the Court of Appeals in Holy Properties, Ltd. v. Kenneth Cole Productions, Inc.

(1995) 87 NY2d 130, 661 NE2d 694 reaffirmed this principal. In that case the court stated, in

recognizing the general duty to mitigate damages in other contracts, that

"Leases are not subject to this general rule, however, for, unlike executory contracts, leases have been historically recognized as a present transfer of an estate in real property.... Once the lease is executed, the leasee's obligation to pay rent is fixed according to its terms and a landlord is under no obligation or duty to the tenant to relet, or attempt to relet abandoned premises in order to minimize damages...." Ibid at 133, 696.

D. Did the plaintiff wrongfully refuse to sublet the property?

The right to sublet is covered by Real Property Law 226-b. Subsection one of said statute

states that

"Unless a greater right to assign is conferred by the lease, a tenant renting a residence may not assign his lease without the written consent of the owner, which consent may be unconditionally withheld without cause provided that the owner shall release the tenant from the lease upon request of the tenant upon thirty days notice if the owner unreasonably withholds consent which release shall be the sole remedy of the tenant. If the owner reasonably withholds consent, there shall be no assignment and the tenant shall not be released from the lease."

Paragraph "7" of the parties' lease states "Landlord may use the security deposit as

reimbursement for the reasonable cost of repairs beyond normal wear and tear, but including

cleanliness, and may use the security deposit as payment of unpaid rent [emphasis added] and

fees incurred by Tenant during the term of the lease." This court does not find anything

unconscionable about said provision. Thus, in applying the standard of "substantial justice" as

required by the Uniform Justice Court Act in Small Claims matters (See UJA 1807), the plaintiff

would be entitled to apply the deposit toward the arrears in rent. See Long v. Greesham (App. [*6]

Term 1st Dept.) 12 Misc 3d 136(A), 820 NYS2d 843.

Conclusion.

The defendant/tenant bore the burden of proving that she was constructively evicted from

the premises. In Re Barnes Estate (1962) 37 Misc 2d 833, 237 NYS2d 183. She failed to

establish said burden on that issue. Nor was the evidence presented by the defendant sufficient to

establish a breach of the warranty of habitability as defined by Real Property Law 235-b(1).

Thus the defendant remains liable to the plaintiff in the amount of $2,025.00 for the remaining

three months rent, plus late fees in the amount of $150.00, for a total of $2,175.00. The

plaintiff/landlord had no duty mitigate his damages by attempting to obtain a new tenant for the

premises, upon the abandonment of said premises by the defendant prior to the end of the lease

term. The evidence was not sufficient to hold that the defendant complied with the terms of the

lease relative to obtaining a subtenant or that the landlord unreasonably withheld consent to

sublease the premises in violation of Real Property Law 226-b(1). However, plaintiff did incur

expenses of $25.30 in an attempt to find another tenant. Finally, based on the terms of the lease

agreement and the rulings herein, the plaintiff may retain the deposit of $875.00, and apply same

toward the rental arrears of $2,025.00, plus late fees of $150.00 and advertising expenses of

$25.30. Wherefore, the plaintiff shall hereby be entitled to a judgment against the defendant in

the amount of $1,325.30, together with the filing fee in the amount of $15.00 for a total of

$1,340.30.^[FN3] This constitutes the decision and order of this Court. ^[FN4] [*7]

Dated: April 30, 2007

Webster, New York

E N T E R ,

_________________________________

Hon. Thomas J. DiSalvo

Webster Town Justice