Trial Required on Breach of Warranty of Habitability, Claims Based on Elevator Repairs

Tenants sued landlord for fraud, breach of the warranty of habitability, and partial constructive eviction due to the building elevator being temporarily out of service. Tenants asked the court to rule in their favor without a trial. The court ruled against tenants, who appealed and lost. As to fraud, an arms' length rental transaction between landlord and tenant didn't create a fiduciary relationship, so landlord had no affirmative duty to inform prospective tenants that repairs would take the elevator temporarily out of service. And, even if their fraud claim was based on a theory that landlord afirmatively misrepresented the elevator's availability during the lease period by advertising elevator service on its website, there was a question of fact as to whether landlord intended to defraud.

As to tenants' claims for breach of the warranty of habitability and partial constructive eviction, an issue of fact existed as to whether tenants unreasonably rejected landlord's offer of alternative accommodation in a second-floor apartment while elevator repairs were being done. And a tenant can't claim constructive eviction while remaining in full possession of his apartment. Questions of fact on that issue also required a trial.

Clarke v. Fifth Ave. Dev. Co., LLC: Index No. 158986/20, App. No. 16841, Case No. 2022-02396, 2022 NY Slip Op 06991 (App. Div. 1 Dept.; 12/8/22; Kern, JP, Gesmer, Kennedy, Scarpulla, Rodriguez, JJ)