191 St. LLC v Roa

Civil Court of the City of New York, Bronx County

Decided on April 28, 2026

Index No. LT-317549-25/BX

Diane E Lutwak, J.

Recitation, as required by CPLR Rule 2219(A), of the papers considered in the review of Petitioner's Motion for an Order granting leave to reargue the Court's Decision and Order of February 24, 2026 pursuant to CPLR § 2221 and, upon such reargument, various relief:

PAPERS Doc###

Notice of Motion, Attorney's Affirmation, Exhibits A-F,

Affidavit of Service Doc ## 1,2,3-8,9 [NYSCEF Doc #12]

This is a nonpayment eviction proceeding based on a Petition dated May 29, 2025 seeking rent arrears of $6519.16. Respondent Gloria Roa pro se filed an answer on June 16, 2025 raising a general denial and a defense of conditions in the apartment and/or building which Petitioner did not repair. Respondents pro se then filed a supplemental document, including detailed statements in support of a defense and counterclaim dating back to May 2023 for breach of the warranty of habitability, which the Court treated as an Amended Answer for Respondent Gloria Roa and an initial Answer for Respondent Reinaldo Roa. After unsuccessful settlement negotiations in a Resolution Part, the case was transferred to this Trial Part, where a trial took [*2]place on February 20, 2026. At trial, Petitioner, represented by counsel, presented evidence in support of its prima facie case for nonpayment of rent and Respondents, appearing without counsel, presented evidence in support of their defense and counterclaim of breach of the warranty of habitability due to insufficient heat and suspended elevator service. Petitioner presented no rebuttal case to refute Respondents' evidence.

By Decision/Order after trial this Court found that Respondents established their defense and counterclaim by a clear preponderance of the probative and credible evidence and were entitled to a rent abatement dating back to March 2023. The Court further found that the abatement of $8160 over a 3-year period proposed by Respondents — comprised of $15 for each day when there was insufficient heat and each day of suspended elevator service through the end of 2023, increased in February 2024 to $20 for each such incident - was reasonable under the circumstances, including that Respondents are elderly and disabled and live on the sixth floor of their building. Based on the amount alleged by Petitioner to be due, and the amount of the abatement awarded, Petitioner's claim for $8115.27 in rent arrears due through February 2026 was dismissed and Respondents were awarded a money judgment of $44.73.

Now before the court is Petitioner's motion seeking leave "to reargue the Decision and Order issued by this Court on 2-24-26 (pursuant to CPLR § 2221)" and, upon reargument, to vacate that Decision/Order; amend the petition to date; require Respondents to "pay all the arrears due through date forthwith"; and issue a judgment and warrant against Respondents. In the alternative, Petitioner requests, upon reargument, that the Court vacate its prior Decision/Order "and modify the decision and order to reduce the rent abatement awarded to Respondent." In a supporting affirmation, Petitioner's attorney cites to CPLR § 2221 and argues that leave to reargue should be granted "as the court overlooked or misapprehended important facts and laws in this case." Petitioner argues that the Court erred as a matter of law in calculating damages under Real Property Law § 235-b by adopting a per diem formula and by awarding an excessive rent abatement. Petitioner argues that the methodology used to calculate the abatement resulted in an award that is disproportionate to the evidence presented and inconsistent with the methodology typically applied in such cases.

Petitioner's motion for reargument based upon matters of fact or law allegedly overlooked or misapprehended by the Court under CPLR § 2221 is denied. That section of the CPLR on its face permits reargument of a motion , not reargument of a decision after trial; it does not apply to the procedural posture of this case.

Even if this Court were to consider Petitioner's motion as having been brought under CPLR § 4404(b) it would be denied. First, the motion is untimely, albeit by only one day: CPLR § 4405 requires a motion under CPLR § 4404(b) to be made within fifteen days after the decision, and Petitioner filed its motion sixteen days after the decision. Second, Petitioner has failed to meet the CPLR § 4404(b) standard for setting aside a decision after a bench trial. In Jacobs v Gerling (2025 NY Slip Op 32416(U)[Sup Ct NY Co 2025]), New York County Supreme Court Justice Eric Schumacher recently reviewed the case law and summarized the CPLR § 4404(b) standard as follows:

Pursuant to CPLR 4404[b], after a nonjury trial, a court may, on the motion of a party or its own motion, set aside its decision to make new findings of fact or conclusions of law." (see CPLR 4404[b]; see also Trimarco v Data Treasury Corp., 146 AD3d 1008, 1009, 46 N.Y.S.3d 640 [2d Dept 2017] [citations omitted]). "In the case of a nonjury trial, a [*3]motion pursuant to CPLR 4404 is subjected to the same standard of review as findings in a jury trial generally" (id.). The court must "[d]ecide whether substantial justice has been done, whether it is likely that the verdict has been affected and must look to his . . . own common sense, experience and sense of fairness rather than to precedents in arriving at a decision." (D'Amato v WDF Dev., LLC, 183 AD3d 695, 696, 124 N.Y.S.3d 56 [2d Dept 2020] [internal quotation marks and citations omitted]). "On a challenge to the sufficiency of a verdict in favor of a plaintiff, the evidence in support thereof must be accepted as true and viewed in the light most favorable to the plaintiff" (Place v Fed. Pac. Elec. Co., 241 AD2d 317, 318, 659 N.Y.S.2d 29 [1st Dept 1997] [citations omitted]). "[A] motion to set a verdict as against the weight of the evidence should only be granted where the verdict is palpably wrong" (Cholewinski v Wisnicki, 21 AD3d 791, 791, 801 N.Y.S.2d 576 [1st Dept 2005] [citations omitted]).

Here, substantial justice was done on the facts presented and the Court declines to find that its Decision/Order was palpably wrong. As to the sufficiency of the evidence at trial, as noted in the leading case of Park West Management Corp v Mitchell (47 NY2d 316, 327, 391 NE2d 1288, 1294, 418 NYS2d 310, 316 [1979]), "[e]ach case must, of course, turn on its own peculiar facts." While Park West Mgmt Corp v Mitchell goes on to say that "standards of habitability set forth in local housing codes will often be of help in resolution of this question", there is no requirement that a violation have been placed for a tenant to establish a breach of the warranty of habitability and, in fact, the converse is also true: "a simple finding that conditions on the lease premises are in violation of an applicable housing code does not necessarily constitute automatic breach of the warranty." Park West Mgmt Corp v Mitchell (47 NY2d at 327-28, 418 NYS2d at 316, 391 NE2d at 1294). "In ascertaining damages, the finder of fact 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." Park West Mgmt Corp v Mitchell, supra (47 NY2d at 329, 418 NYS2d at 317, 391 NE2d at 1295). Here, while Respondents did not subpoena records from DHPD, the Court fully credited their testimony and documents submitted into evidence in reaching its conclusion. Petitioner, on the other hand, presented no rebuttal evidence to refute Respondents' evidence or to demonstrate actions taken to address Respondents' complaints about insufficient heat and frequent elevator outages.

Park West Mgmt Corp v Mitchell also tells us that 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". While often the amount of an abatement is calculated based on a percentage of the requirement, this is not the only way to calculate an abatement. See, e.g., 2363 S Blvd LLC v Liboy (2017 NYLJ LEXIS 3731 [Civ Ct Bx Co 2017])($20 per day abatement for an approximately 8-month period found to be reasonable and appropriate); AL Holdings Inc v Montanez (44 Misc 3d 1230[A], 998 NYS2d 305 [Civ Ct NY Co 2014])($41 per day abatement awarded for three days)

As stated in this Court's Decision and Order of February 24, 2026, the abatement amounts proposed by Respondents were "reasonable under all of the circumstances presented, including that Respondents are elderly and disabled and live on the sixth floor of their [*4]building".^FN1

Based on the foregoing, it is hereby ORDERED that Petitioner's motion is denied. This constitutes the Court's Decision and Order, which is being uploaded on NYSCEF and sent to Respondents by email.

Diane E Lutwak, HCJ

Dated: April 28, 2026

Bronx, New York