386 Ft. Wash. Realty LLC v Brenes

[*1] 386 Ft. Wash. Realty LLC v Brenes 2015 NY Slip Op 50286(U) Decided on March 9, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 9, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Shulman, JJ.
570800/11

386 Ft. Washington Realty LLC, Petitioner-Landlord-Respondent, -

against

Ricardo Brenes, Respondent-Tenant-Appellant.

Tenant appeals from a judgment of the Civil Court of the City of New York, New York County (Brenda S. Spears, J.), entered on or about September 21, 2012, after nonjury trial, which dismissed his counterclaim for breach of the warranty of habitability.

Per curiam.

Judgment (Brenda S. Spears, J.), entered on or about September 21, 2012, affirmed, with $25 costs.

Giving due deference to the trial court's findings of fact and credibility, we find no basis to substitute our judgment for that of the trial court in dismissing tenant's warranty of habitability counterclaim. A fair interpretation of the evidence, including the credited testimony of landlord's long-term superintendent, supported the court's express factual finding that tenant "offered no proof that he advised the [landlord] that repairs were needed from 2004 until the [July 2009] commencement of the instant proceeding"(see Matter of Moskowitz v Jorden, 27 AD3d 305 [2006]). In this regard, the tenant's February 20 2004 letter to landlord, complaining in general terms about conditions in the apartment, "especially the bathtub," was insufficient to put landlord on notice of the alleged flooding condition that forms the basis of tenant's habitability claim at trial.

Nor do we find any abuse of discretion in the grant of tenant's attorney's motion to withdraw (see McDonald v Shore, 100 AD3d 602 [2012]), given tenant's nonpayment of legal fees, the breakdown in the attorney client relationship and the adjournment of trial for a reasonable period to enable tenant to retain new counsel (see Musachio v Musachio, 80 AD3d 738 [2011]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concurI concur

Decision Date: March 09, 2015