Ocean Rock Associates v. Cruz , 66 A.D.2d 878 ( 1978 )

In a summary proceeding to recover possession of real property, the landlord appeals (by permission) from an order of the Appellate Term of the Supreme Court for the Ninth and Tenth Judicial Districts, dated November 14, 1977, which affirmed a judgment of the First District Court, Nassau County, entered January 27, 1977, which, after a nonjury trial, dismissed the petition. Order affirmed, with costs. There was sufficient evidence to sustain the trial court’s determination that the appellant landlord had breached the implied warranty of habitability. The Appellate Term, citing Covington v McKeiver (88 Misc 2d 1000), correctly held that upon the tenants’ establishing the landlord’s grievous and substantial breach of warranty, the entire rent demanded "abated”. We find no merit to appellant’s contention that since section 755 of the Real Property Actions and Proceedings Law does not apply, the tenants should have been compelled to deposit the rent into court. The appellant argues that if the tenants had been denied vital services, constructive eviction resulted and thus the tenants’ sole resort was to vacate the apartment. By virtue of section 235-b of the Real Property Law (L 1975, ch 597, § 1), a tenant is no longer confined to the dubious remedy of vacating his apartment. That statute confirmed and codified the implied warranty of habitability which, if breached, provides an alternative remedy or complete defense to the tenant. In Park West Mgt. Corp. v Mitchell (62 AD2d 291), the Appellate Division, First Judicial Department, for the first time had to "interpret and apply” section 235-b. After noting the comments by the statute’s sponsor, Senator Barclay, that court, in referring to the rationale justifying the legislative intent, stated (p 295): "The decisions referred to in his statement reflected the increasing judgment of courts concerned with landlord-tenant proceedings that rules developed in an earlier era did not yield sensible or just results when applied to the realities of contemporary apartment living, and that the right of the landlord to receive rent (obviously of critical importance) had somehow become separated from and given preference to the right of tenants to live in apartments maintained decently and in accordance with requirements of law. (See, e.g., Amanuensis, Ltd. v Brown, 65 Misc 2d 15; Morbeth Realty Corp. v Rosenshine, 67 Misc 2d 325; Mannie Joseph, Inc. v Stewart, 71 Mise 2d 160; Tonetti v Penati, 48 AD2d 25; 57 E. 54 Realty Corp. v Gay Nineties Realty Corp., 71 Misc 2d 353. See, also Javins v First Nat. Realty Corp., 427 F2d 1071; Marini v Ireland, 56 NJ 130; Pines v Perssion, 14 Wis 2d 590.)” Here, the deprivations were so substantial—the trial court characterized them as "appalling”—as to result in an abatement of the rent in toto. (We note that subdivision 3 of section 235-b of the Real Property Law provides that the tenant need not prove his damages by expert testimony.) Hopkins, J. P., Damiani and Hawkins, JJ., concur.