BACKGROUND

This summary nonpayment proceeding was commenced by 65E92, LLC

Petitioner issued a three day notice dated August 21, 2014, seeking $33,500 in rent and late fees for July and August 2014, at a monthly rent of $16,500.00. The petition is dated September 12, 2014, and the proceeding was initially returnable October 6, 2014.

Respondent appeared by counsel on September 26, 2014, and filed an answer asserting seven affirmative defenses^[FN1] . Respondent seeks an abatement of rent for breach of warranty of habitability from September 2013 forward, based on the following specific conditions: severe construction noise, dust and vibration; closing off of windows; fireplace and chimney unusable; security and privacy breaches; inadequate heat and failure to provide window guards.

The proceeding was initially returnable on October 6, 2014. On said date, Petitioner moved for an order dismissing Respondent's defenses and striking the jury demand. On November 20, 2014, after oral argument, the court (Schreiber, J) granted the motion on the record to the extent of dismissing the first affirmative defenses and severing the sixth affirmative defense, and reserved decision on the balance of the motion.

On December 19, 2014, the court issued a written decision and order dismissing Respondent's second, third, fifth and seventh affirmative defenses and striking the jury demand. The sole remaining defense for Respondent to proceed on at trial was the fourth defense asserting a breach of the warranty of habitability.

On January 8, 2015, the proceeding was assigned to Part L for trial. The trial commenced and concluded on said date.

The parties stipulated that there was $99,000.00 unpaid in rent through and including January 2015. The parties further stipulated that the sole issue for the court would be to determine what, if any, abatement Respondent is entitled to.

Petitioner is the owner of 65 East 92nd Street, pursuant to a deed dated November 18, 2011 (Ex 4). The building is a townhouse which has four floors, and a basement. Petitioner's principal, Stephen Swanson and his wife Teri, have owned and lived in the building since they purchased it in 1972. They are retired and now live on the fourth floor. The balance of the building consists of the Subject Premises, a luxury triplex, which Mr. And Mrs. Swanson rent to supplement their retirement income.

Respondent is the tenant of record of the Subject Premises, pursuant to a lease (Ex 1) dated September 10, 2013, for a term through and including September 30, 2015. Respondent moved into the Subject Premises with her husband, Alessandro Chiurazzi (Undertenant), and her daughter, Kiki Chiurazzi, in September 2013, and has lived and worked there ever since.

The first floor of the Subject Premises contains a Living Room, Dining area, Kitchen, and opens onto a large garden. The second floor of the Subject Premises consists of two [*3]bedrooms and two bathrooms. The third floor of the Subject Premises consists of two additional bathrooms, a master bedroom, and a library or home office. The basement contains the laundry room, a wine cellar and the boiler room.

The Subject Premises was in pristine condition at the time Respondent took occupancy. Respondent rented the Subject Premises unfurnished, but the condition is otherwise depicted in photos in evidence (Ex. 3(b) - (t)).

At the time that Respondent rented the Subject Premises, the neighboring building, 63 East 92nd Street, was undergoing a gut renovation. Respondent observed this, as scaffolding had been erected and was aware of the ongoing renovation project prior to deciding to rent the Subject Premises.

The Subject Premises was rented with a woodburning fireplace. It is uncontested that the fireplace was not operating properly until February 2014.

Respondent testified that she was entitled to an abatement based on "noise, vibrations, dust and foul odors" from the construction of the neighboring building. The court finds that Respondent failed to establish any condition based on same which warrants an abatement. Respondent's testimony that she could not use 100% of the Subject Premises from September 2013 through April 2014 was not credible, and in fact was acknowledged as false by Respondent. Respondent's testimony that she and her family only used one room of the triplex apartment was not credible, and not supported by any other evidence in the record.

Additionally, Respondent's own witness, Jill Gordon, the project manager for the renovation of the next door building, credibly testified that the heavy demolition was done well before Respondent moved into the Subject Premises, in late 2011 / early 2012, and that the ongoing work involved no power tools, but hand tools, and that in fact little to no work at all had taken place from September 2014 forward.

Respondent also alleged that there was insufficient heat in the Subject Premises from the commencement of the tenancy through the date of the trial. The court notes that Respondent, who was represented by competent counsel, failed to establish a single violation was ever issued by HPD for lack of heat or any other condition. The only specific testimony that Respondent offered regarding temperatures and dates was that on the morning of the trial, the temperature on the third floor heating device, read 59 degrees. However, Respondent offered no testimony about whether she went downstairs to raise the heat for the Subject Premises on said date, in deed she testified that at the time of this temperature reading, the system was "off".

It is uncontested that Respondent has full access to the boiler room and is able to adjust the temperature in the Subject Premises at will. The same boiler and controls are used to heat the 4th floor, which Mr. Swanson and his wife live in, and which was receives and had received adequate heat. Additionally, Respondent's testimony regarding a lack of heat was not credible, and was contradicted by other evidence in the record. For example in February 2014, Respondent wrote an email acknowledging that the heat was working, and even stating that one half of the Subject Premises was too hot by three to four degrees.

There was no competent evidence submitted by Respondent that the heat fell below legal requirements on any date in the Respondent's tenancy. Respondent did not offer any evidence regarding the temperature inside the Subject Premises or outside for any date other than January 8, 2015.

Finally, Respondent failed to establish or even address any breach of warranty of habitability based on closed off windows, security violations or window guards. Nor is there any [*4]proof of any complaints to Petitioner having been made by Respondent regarding these issues.

While Respondent's answer does not assert a counterclaim for breach of warranty of habitability, it does specify that Respondent seeks an abatement for September 2013 forward, Petitioner was on notice of the claim and thus the court will consider Respondent's claim for same for the entire period requested (Heights 170 LLC v York 29 Misc 3d 138).

New York Real Property Law §235-b provides for an implied warranty of habitability. Landlords of residential premises are required to keep the premises "fit for human habitation" and free of conditions that are dangerous, to the life, health or safety of the tenants ( Park West Management Corp. v. Mitchell, 47 NY2d 316 at 327).

.... a landlord is not a guarantor of every amenity customarily rendered in the landlord-tenant relationship. The warranty of habitability was not legislatively engrafted into residential leases for the purpose of rendering landlords absolute insurers of services which do to affect habitability. Rather section 235-b of the Real Property Law was designed to give rise to an implied promise on the part of the landlords that both the demised premises and the areas within the landlord's control are fit for human occupation at the inception of the tenancy and that they will remain so throughout the lease term.

The Court of Appeals further noted that " ..a landlord is not required to ensure that the premises are in perfect or even aesthetically pleasing condition; he does warrant, however, that there are no conditions that materially affect the health and safety of tenants (id at 327)."

The Court of Appeals specifically noted in a later case that the implied warranty of habitability does not require that the premises be maintained in accordance with reasonable expectations of the tenant, but instead reflected a legislative concern that the premises have the essential functions which a residence is expected to provide (Solow v Wellner 86 NY2d 582,589).

The only breach that the Court finds Respondent established which entitles Respondent to an abatement of rent is the fact that the Chimney did not work from September 2013 through February 2014. While a woodburning fireplace, is not an "essential" service, it was clearly part of the bargained for consideration in the lease.

If the landlord breaches the warranty of habitability, the proper measure for damages is " ... the difference between the fair market value of the premises if they had been as warranted, as measured by the rent reserved under the lease, and the value of the premises during the period of the breach ( Park West Management Corp. 47 NY2d 316, 329)."

The Court must weigh the severity of the violation and duration of the conditions giving rise to the breach, as well as the effectiveness of steps taken by the landlord to abate those conditions (N. Town Roosevelt Assoc. v. Mullen, NYLJ, Oct. 27, 1980. P.6, col. 45; Concord Village Management v. Rubin, 101 Misc 2d 625).

The court finds Respondent is entitled to a 2% abatement for the non-working fireplace for October 2013 through February 2014.

The court does not find that Respondent established the right to an abatement for any other condition alleged.

Based on the foregoing , Respondent is entitled to an abatement totaling $1650.00.

This constitutes the decision and order of this court.^[FN2]

Dated: New York, New York