RST Corp. v. Meyerhoff , 771 N.Y.S.2d 351 ( 2004 )

Order and judgment (one paper), Supreme Court, New York County (Shirley Werner Kornreich, J.), entered December 24, 2002, after a nonjury trial, in favor of defendant landlord and against plaintiff tenants, unanimously affirmed, without costs.

We reject tenants’ argument that the trial evidence requires a finding that landlord’s main witness committed perjury. To the extent his testimony conflicted with that of another witness as to whether the two were together at a particular time and place, a simple issue of credibility was raised for the trial court to resolve (see Thoreson v Penthouse Intl., 80 NY2d 490, 495 [1992]). Nor does the warranty of habitability (Real Property Law § 235-b) avail tenants under the circumstances of this case. The lease, which was signed on April 28, 1994 and commenced on May 1, 1994 in the midst of substantial ongoing repair work to the premises, provided for a full abatement of rent until landlord was able to give tenants possession, but that tenants would be obligated to start paying rent if they placed any personal property on the premises or took physical possession thereof. The lease also provided that tenants had inspected the premises and were taking them “as is,” except for certain specifically described repairs. Tenants took possession of the premises on May 2, 1994. The trial evidence shows that certain plumbing and light fixtures and appliances were not then in working order but were corrected by the end of May. Concur— Mazzarelli, J.P, Saxe, Ellerin and Friedman, JJ.