12-14 E. 64th Owners Corp. v Hixon

[*1] 12-14 E. 64th Owners Corp. v Hixon 2013 NY Slip Op 50130(U) Decided on January 30, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 30, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Torres, Hunter, Jr., JJ
570432/11.

12-14 East 64th Owners Corp., Petitioner-Landlord-Cross Appellant,

against

Verina Hixon, Respondent-Tenant-Appellant.

In consolidated summary proceedings, tenant appeals from those portions of a final judgment of the Civil Court of the City of New York, New York County (Jean T. Schneider, J.), entered November 20, 2009, after a nonjury trial, which awarded landlord possession and a recovery of maintenance arrears on the nonpayment petition and dismissed tenant's counterclaims for a maintenance abatement and attorney's fees. Landlord cross-appeals from so much of the aforesaid final judgment as dismissed the holdover petition, directed it to restore the apartment to habitable condition, and dismissed its claim for attorney's fees.

Per Curiam.
Final judgment (Jean T. Schneider, J.), entered November 20, 2009, modified to reduce landlord's recovery of maintenance arrears to the principal sum of $34,300.02, and, as modified, affirmed, without costs.

These consolidated summary proceedings stem from what the trial court described as a "catastrophic" flood — occurring in January 2004 as a result of a "burst pipe" in an upstairs apartment — that rendered tenant's duplex cooperative apartment uninhabitable. After a lengthy trial, the court issued a comprehensive decision detailing the contentious history of this litigation and thoroughly analyzing the parties' competing claims. The court's express findings are supported by a fair interpretation of the evidence (see Thoreson v Penthouse Intl., Ltd., 80 NY2d 490, 495 [1992]), and except for one matter noted below, are not disturbed.

The record shows and the court expressly found that from the time of the flood through the end of April 2004, "[landlord] had notice of the damage and full access to [tenant's] apartment." In view of this fully supported factual finding, and since the structural damage to the apartment during this time frame is not in dispute, tenant was entitled to a complete maintenance abatement (see Goldstone v Gracie Terrace Apt. Corp., 73 AD3d 506, 507 [2010]; Granirer v Bakery, Inc., 54 AD3d 269, 270 [2008]), and this even if tenant, who was overseas on the date of the flood and for much of this initial time period, did not formally ask landlord to undertake the requisite repair work. However, we agree, largely for reasons stated by the trial court, that tenant [*2]was not entitled to any further abatement. With respect to the period from May 2004 through August 2005, the record supports the court's finding that tenant effectively denied landlord access to make repairs, having opted to hire her own contractors to do the work, and additionally insofar as concerns the period commencing in September 2005, that tenant's actions, including her failure to comply with the terms of the parties' September 2004 stipulation settling a related Supreme Court action, had contributed to the delay in resolving the parties' dispute and "in creating the situation of which [tenant] complains."

The parties' respective applications for attorneys' fees are properly denied. Under these circumstances, and in view of the mixed outcome of the consolidated cases, "neither party can claim to have prevailed in the litigation, just as neither can claim to have been merely the hapless victim of the other's combative litigation style" (see Mosesson v 288/98 West End Tenants Corp., 294 AD2d 283 [2003], quoting Walentas v Johnes, 257 AD2d 352, 354 [1999], lv dismissed 93 NY2d 958 [1999]).

We have considered the parties' remaining arguments for affirmative relief and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: January 30, 2013