520 W. 43rd St. Partners, LLC v Olawoyin

[*1] 520 W. 43rd St. Partners, LLC v Olawoyin 2010 NY Slip Op 50938(U) [27 Misc 3d 139(A)] Decided on May 26, 2010 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 26, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Shulman, JJ
570732/09.

520 West 43rd Street Partners, LLC, Petitioner-Landlord-Respondent,

against

Femi Olawoyin, Respondent-Tenant-Appellant.

Tenant appeals, as limited by his briefs, from so much of a final judgment of the Civil Court of the City of New York, New York County (Jean T. Schneider, J.), entered September 24, 2009, after a nonjury trial, as limited his recovery on his habitability counterclaim to the sum of $2,316.

Per Curiam.
Final judgment (Jean T. Schneider, J.), entered
September 24, 2009, modified to increase the percentage abatement awards on tenant's habitability counterclaim to 5% for the time periods specified below and to remand the matter for calculation of the net money judgment due landlord.

Upon review of the record, we conclude that the elevator service and heating system problems found to have constituted violations of the warranty of habitability each justified 5% rent abatements for the relevant time periods. These percentage abatements more closely represent "the difference between the fair market value of the premises if they had been as warranted, as measured by the rent reserved under the lease, and the value of the premises during the period[s] of the breach" (Park W. Mgt. Corp. v Mitchell, 47 NY2d 316, 329 [1979]; see Solow Mgt. Corp. v Tanger, 1 AD3d 165 [2003]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: May 26, 2010