Bay Park One Co. v. Crosby , 109 Misc. 2d 47 ( 1981 )

OPINION OF THE COURT

Memorandum.

Final judgment unanimously reversed, without costs, and matter remanded to the court below for a new trial.

A tenant is not entitled to recover consequential damages for a landlord’s breach of the implied warranty of habitability (see Curry v New York City Housing Auth., 77 AD2d 534). The measure of damages for such a breach is the difference between the fair market value of the premises if they had been as warranted, or measured by the rent reserved under the lease, and the value of the premises during the period of the breach (see Park West Mgt. Corp. v Mitchell, 47 NY2d 316, cert den 444 US 992). In addition, where the lease so provides, a landlord is entitled to recover from the tenant, as additional rent, legal expenses incurred in the prosecution of a summary proceeding (1 Rasch, New York Landlord and Tenant [2d ed], § 358).

Concur: Buschmann, Kirsch and Kunzeman, JJ.