360 W. 51st St. Realty, LLC v Cornell

360 W. 51st St. Realty, LLC v Cornell 2007 NY Slip Op 27028 [14 Misc 3d 90] Accepted for Miscellaneous Reports Publication AT1 Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 28, 2007

[*1] 360 West 51st Street Realty, LLC, Appellant,
v
Brenda Cornell et al., Respondents.

Supreme Court, Appellate Term, First Department, January 30, 2007

APPEARANCES OF COUNSEL

Landman Corsi Ballaine & Ford P.C., New York City (James E. Davies and Samantha D. Migdal of counsel), for appellant. Gallet Dreyer & Berkey, LLP, New York City (Beatrice Lesser, Morrell I. Berkowitz and Erica J. Stien of counsel), for respondents.

{**14 Misc 3d at 91} OPINION OF THE COURT

Per Curiam.

Final judgment, entered August 22, 2005, affirmed, with $25 costs. Appeal from orders, entered June 15, 2004 and June 10, 2004, dismissed, without costs, as subsumed in the appeal from the final judgment.

A fair interpretation of the voluminous trial evidence, including the opinion testimony offered by tenant's environmental and medical experts, supports the trial court's fact-laden determination that landlord breached the warranty of habitability through its demolition and debris removal work in the building's basement, which caused "metallic dust and fungi" to enter into tenant's ground floor apartment (see Park W. Mgt. Corp. v Mitchell, 47 NY2d 316 [1979], cert denied 444 US 992 [1979]). The record shows that tenant promptly notified landlord of the deleterious health effects caused by its construction, and, as the trial court expressly found, landlord "did absolutely nothing to examine her complaint or acknowledge the possibility of a problem or call in an expert to evaluate the situation." The abatement award, though substantial, was warranted in light of the serious nature of the apartment conditions shown to exist.

We have considered landlord's remaining arguments and find them unavailing.

McKeon, P.J., Davis and Schoenfeld, JJ., concur.{**14 Misc 3d at 92}