On or about August 4, 2016, the landlord commenced this holdover summary proceeding seeking to evict the tenants on the ground that the tenants had failed to cure their violation of the no-pet clause in the parties' lease. Petitioner Hope Horizon Realty claims that tenants had violated their lease by harboring two cats without landlord's permission and seeks a final judgment of possession of the subject apartment and a money judgment in the amount of $7,262.05 for use and occupancy through August 2017.

In their answer to the petition the tenants claimed, among other things, that the proceeding was instituted in bad faith and that the landlord had waived enforcement of the no-pet clause by commencing the instant proceeding more than three months after landlord had become aware that tenants were harboring the cats and, thus, that they are entitled to retain their cats and possession of the premises. Tenants also seek an abatement for warranty of habitability complaints.

A non-jury trial was held before this Court on the following dates; December 21, 2016, January 17, 2017, March 29, 2017, June 13, 2017, June 20, 2017 and July 14, 2017. Both sides presented witnesses to testify on their behalf.

At the trial, petitioner presented the testimony of five fact-witnesses including the building's superintendent, two maintenance workers of petitioner and management personnel all of whom maintained they never knew of or saw any cats or evidence of cats in the apartment until May 22, 2016, when the landlord sent workers to repair Notice Violations from the City of Mount Vernon Building Department. Maintenance employee "Jomo" Obi testified that upon noticing the cats on the aforementioned date he immediately reported the same to the office triggering the Notice to Cure being served on the respondents on June 8, 2016.

To the contrary, respondents and their fact witness testified that the landlord's maintenance personnel knew or should have known that cats were in the apartment resulting from certain visits at the premises between the years 2009-2016. Respondents alleged that when the maintenance workers of the petitioner came in the apartment to do repairs, on all such occasions the cats were present in the apartment and that traditional accouterments of household pets, including a litter box and jungle gym, were in plain view.

There is no dispute that respondents' lease prohibits keeping cats in their apartment. The no-pet clause reads that "dogs, cats or other pets are not allowed in the apartment or building." A second no-pet clause is also reiterated on the last page of the lease. The lease also contains a provision that its terms may be changed only by written agreement, and it is undisputed that landlord and tenants in this matter did not enter into such an agreement. Notwithstanding the no-pet clauses, both respondents admitted they were harboring cats in their apartment at the time the lease was executed and have continued to do so through the date of the Notice to Cure and the time of trial."No-pet" clauses have been held to be enforceable and to be substantial obligations of the tenancy (Pollack v Green Constr. Corp., 40 AD2d 996 [1972], affd 32 NY2d 720 [1973]; Matter of Paulsen Real Estate Corp. v Grammick, 244 AD2d 340 [1997]). The no-pet waiver rule was intended to require that landlords enforce a no-pet clause promptly or be deemed to have waived that breach of the lease (Megalopolis Prop. Assn. v Buvron, 110 AD2d 232, 235-236).

Where an owner or his or her agent has knowledge of a tenant's harboring of a pet openly and notoriously in an apartment for a period of three months or more and fails to commence a summary proceeding to enforce a lease provision prohibiting such activity, the lease provision is waived (Westchester County, NY Code of Ordinances § 695-11; see Seward Park Hous. Corp. v Cohen, 287 AD2d 157, 162-163 [2001]; Gold Queens, LLC v Cohen, 42 Misc 3d 15 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Toledo Mut. Hous. Corp. v Schwartz, 33 Misc 3d 58 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Even when viewed in the light most favorable to the tenants, the trial evidence fails to establish that landlord waived its right to enforce the "no-pets" provision of the governing lease agreement (see Westchester County, NY Code of Ordinances § 695-11). While tenant, Karen Johnson testified that she never hid her cats, she offered scant evidence on the critical "open and notorious" element of the statutory waiver defense. All that was shown in this regard was that one cat became a permanent resident of the subject third-floor apartment in 2001, and another cat was purchased in 2008. Tenants made no showing that the cats were in open view in or near the building premises at any time other than the isolated occasions that it escaped in the third floor hallway. While the tenants claimed that the presence of the cats inside the apartment was detectible by petitioner's maintenance employees, these same employees testified that the cats [*2]were never observed prior to the May 2016 inspection of the apartment. In this posture, no fair interpretation of the evidence can support a finding that the presence of the cats "were so open, notorious and visible as to support an inference that the [landlord] must or should have known of it." (Seward Park Hous. Corp. v Cohen, 287 AD2d 157, 164 [2001].) Moreover, in response to the Notice to Cure, tenant Karen Johnson in an email on June 24, 2016 wrote to petitioner's office confirming her intent to remove the two cats from her apartment by 6 p.m. that day. At trial, Johnson admitted that she never permanently removed the cats from the apartment and that any representation she removed the cats was untrue.

While even a nonwaiver clause may be waived in some circumstances, generally as evidenced by the conduct of the parties, beyond the mere acceptance of rent (see e.g. Dice v Inwood Hills Condominium, 237 AD2d 403 [1997]), the credible evidence and testimony adduced at trial, including providing the lease to tenants with the no-pet clauses, telephone calls and emails to tenants and discussions with them, this Court finds that there was no waiver of the no-pet clause by the petitioner.

During the pendency of this action respondents remained in possession of the premises and petitioner is also now entitled to a money judgment in the amount of the outstanding rents and use and occupancy. Petitioner's rent ledger in its post trial memorandum reflects that $7,321.05 is due in rent through August 2017. Respondents have not disputed this amount.

In defense to the use and occupancy claims, respondents raise an affirmative defense and counterclaim of habitability. Essentially, respondents submit that because the condition of the apartment was so poor it fell below a habitable condition, they are entitled to an abatement.

The warranty of habitability is perhaps the most frequently asserted affirmative defense in residential non-payment proceedings (RPL § 235-b). The warranty of habitability is not a viable defense in either holdover proceedings or commercial cases (see Goethals Mobile Park, Inc. v Staten Island Meadowbrook Park Civic Assn., Inc., 208 AD2d 896, 897-898 [App Div., 2d Dept 1994]). However, to the extent that a tenant asserts a breach of warranty of habitability defense and counter-claim, that aspect of the Answer is properly raised only in response to the landlord's claim for a money judgment based on the tenant's continued use and occupancy of the property after the tenancy was terminated. King Enterprises Ltd. v. Mastro, 2001 NY Slip Op 40162[U] (Civ Ct, New York County, 2001)(although a breach of habitability is not a defense to possession in a holdover action, it may be raised in a holdover proceeding to the extent that petitioner also seeks payment for the tenant's use and occupancy); Ruradan Corp. v Natiello, 21 Misc 3d 1129 (Civ. Ct. of the City of New York, New York County, 2008). The defense is typically not intended to be a complete defense, but rather the tenant seeks an abatement or offset of all or a portion of the unpaid rent due to the conditions of the subject premises. The conditions giving rise to the defense must be continuous, rather than episodic, to be applicable ( Metz v Duenas, 183 Misc 2d 751 [Nassau Cnty. Dist. Ct. 2000]).

RPL § 235—b requires a landlord to, among other things, maintain an apartment fit for human habitation and free of conditions which would be dangerous, hazardous, or detrimental to a tenant's life, health or safety. This "implied warranty protects ... against conditions that materially affect the health and safety of tenants or deficiencies that in the eyes of a reasonable person ... deprive the tenant of those essential functions which a residence is expected to provide." (Solow v. Wellner, 86 NY2d 582, 588 [1995], quoting Park West Mgt. v. Mitchell, 47 [*3]NY2d 316, 328 [1979].) Where a landlord has breached the warranty of habitability, the court may, among other things, award a tenant a rent abatement representing the diminution in value of the services she contracted for. (Park West Mgt. v. Mitchell, supra at 329.)

In New York, the Court of Appeals recognized that the appropriate measure of damages for a breach of the warranty of habitability was not susceptible to a precise determination and that a case by case calculation would be warranted employing four factors: (1) severity of the conditions, (2) notice to the landlord, (3) duration of the condition of disrepair after notice to the landlord, and (4) the effectiveness of the efforts by the landlord to remedy the disrepair (Park West Mgt. Corp. v Mitchell, supra at 330 [1979]).

Respondents submitted in evidence Notices of Violations that were found in the subject apartment by the Mount Vernon Buildings Department dated May 24, 2016, July 18, 2016 and September 28, 2016. These violations include but were not limited to the need for plastering and painting, correction of light fixtures and tiles, and water penetration in the walls. Mount Vernon Housing Inspector Gwen Jackson testified that these violations which were corrected by the landlord in a relatively timely manner. Additionally, Ms. Jackson testified that none of the conditions were considered severe. The Buildings Department did find, however, that as a result of a fire in July 2016 in the apartment directly below the respondents, this smoke condition extended up to respondents' apartment which caused their apartment to be declared unsafe, dangerous and uninhabitable due to the smoke condition. It is undisputed that the respondents were displaced from their apartment for several days, and while the respondents claim to have hotel, meal and travel expenditures as a result of this displacement, they did not support this claim with receipts. The court will however credit them $1,500.00 for the few days they were displaced from their apartment.

Accordingly, judgment of possession to petitioner, use and occupancy in the amount of $5,821.05 representing all rent through August 2017, less the amount credited for the respondents' abatement. Execution of the warrant shall be stayed through August 31, 2017.

This constitutes the decision and order of the Court.