Tenant Fails to Prove Breach of Warranty of Habitability

(Decision submitted by David M. Berger, Esq. of the Brooklyn law firm of Tenenbaum Berger & Shivers LLP, attorneys for the landlord.)

Landlord sued to evict tenant for nonpayment of rent. At the time of trial, landlord claimed that tenant owed over $9,800 in back rent. Tenant claimed breach of the warranty of habitability and asked for a rent abatement. Tenant claimed that there were defects in the building facade and that rain water leaked into a wall of his studio apartment. Tenant claimed further that the water damaged plaster and paint and may have created an electrical hazard to an outlet. Tenant showed proof of two recent HPD violations: an "A" violation calling for repair of the broken or defective plastered surfaces and paint, and the "B" violation calling for repair and abatement of a water leak at the outlet on the apartment wall.

The court ruled for landlord and against tenant. To prove breach of the warranty of habitability, tenant must show that: (1) the premises was less than fit for human habitation; (2) landlord knew or should have known of the same; (3) landlord had a reasonable opportunity to cure but didn't; and (4) the value of the premises had been diminished by landlord's failure to cure. Tenant didn't prove that the apartment's value had been diminished. He didn't testify that he couldn't use the apartment as he had done before or, for example, that he had been too embarrassed by the unsightly patch of wall to entertain at the apartment. One of tenant's photos showed that he in fact continued to use the electric outlet in question. Tenant also acknowledged that for five months he had refused landlord access for repairs and that repairs had now been made.

Citywide Capital LLC v. Tuma: Index No. 89051/13 (Civ. Ct. Kings; 1/17/14; Marton, J) [2-pg. doc.]