Elnazer v Lopez

[*1] Elnazer v Lopez 2009 NY Slip Op 52599(U) [26 Misc 3d 126(A)] Decided on December 15, 2009 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 15, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., PESCE and WESTON, JJ
2008-1769 RI C.

Farouk Elnazer, Appellant,

against

Alba Lopez, Respondent.

Appeal from a judgment of the Civil Court of the City of New York, Richmond County (Mary Kim Dollard, J.), entered April 22, 2008. The judgment, after a nonjury trial, dismissed plaintiff's cause of action and awarded defendant the principal sum of $5,000 on her counterclaims.

ORDERED that the judgment is modified by striking the award to defendant of the principal sum of $5,000 and by providing that the counterclaims are dismissed; as so modified, the judgment is affirmed without costs.

Plaintiff commenced this small claims action to recover for breach of a lease agreement and for property damage. Defendant asserted counterclaims seeking damages for personal injuries, failure to provide proper repairs, breach of the warranty of habitability, loss of property and loss of time from work. After a nonjury trial, the Civil Court dismissed plaintiff's cause of action and awarded defendant the principal sum of $5,000 on her counterclaims. The instant appeal by plaintiff ensued.

While the Civil Court failed to set forth its specific findings of fact and credibility determinations and, thus, the basis for dismissal of plaintiff's cause of action is unclear, we find that plaintiff's cause of action was properly dismissed since plaintiff failed to adequately establish the damages he had sustained as a result of the alleged breach of the lease agreement (CCA 1804). With respect to defendant's counterclaims, a review of the record indicates that defendant failed to establish that she sustained any personal injuries. As to defendant's counterclaim for property damage, Real Property Law § 235-b does not permit a tenant to recover for damage to personal property resulting from a breach of the warranty of habitability (Concetto v Pedalino, 308 AD2d 470 [2003]). Moreover, defendant was not entitled to recover damages for breach of the warranty of habitability since her rent was paid by a third party (cf. Committed Community [*2]Assoc. v Croswell, 171 Misc 2d 340, 344 [App Term, 2d & 11th Jud Dists 1997]). Regarding defendant's counterclaim for loss of time from work, even assuming that such a claim in this instance is compensable, defendant presented no evidence to support an award of damages.

Consequently, in order to render substantial justice according to the rules and principles of substantive law (CCA 1807), we modify the judgment by striking the award in favor of defendant in the principal sum of $5,000 and by providing that the counterclaims are dismissed.

Golia, J.P., Pesce and Weston, JJ., concur.
Decision Date: December 15, 2009