Stellar Sutton, LLC v Zitman

[*1] Stellar Sutton, LLC v Zitman 2019 NY Slip Op 51518(U) Decided on September 25, 2019 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 25, 2019
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, P.J., Cooper, Edmead, JJ.
570977/18

Stellar Sutton, LLC,

against

Haim Zitman, Respondent-Tenant-Appellant.

Tenant appeals from a "decision and order" of the Civil Court of the City of New York, New York County (Jack Stoller, J.), entered on or about September 11, 2018, after a nonjury trial, which awarded landlord possession and a recovery of rent arrears in the sum of $56,524.94 in a nonpayment summary proceeding.

Per Curiam.

Appeal from "decision and order" (Jack Stoller, J.), entered on or about September 11, 2018, deemed an appeal from the ensuing final judgment (same court and Judge), entered September 12, 2018, and so considered (see CPLR 5520[c]), final judgment affirmed, without costs.

Upon review of the trial record, we are satisfied that the trial court properly resolved the rent and habitability issues litigated below, and that an increase in the amount of the abatement awarded to the tenant is not warranted. The trial evidence, fairly interpreted, supports the court's express finding that tenant's testimony "lack[ed] specificity regarding dates and the relative severity" of the alleged inadequate heat, air conditioning and hot water conditions (see generally 195-24, LLC v Titus, 52 Misc 3d 134[A], 2016 NY Slip Op 51027[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). In the circumstances, the modest percentage amounts of the abatement awarded for the various apartment conditions over specified time periods were within reasonable limits and are not disturbed (see generally 540 E. 5th St. Equities, Inc. v Bosco, 23 Misc 3d 134[A], 2009 NY Slip Op 50780[U] [App Term, 1st Dept 2009]).

In view of the two-attorney stipulation withdrawing tenant's underlying overcharge claim, and the absence of any motion by tenant to vacate that stipulation, tenant's contention that the court should have looked back more than four years to determine the base date rent is not properly before us (see generally Rowley v Amrhein, 64 AD3d 469, 470 [2009]; Garrison v Garrison, 52 AD3d 927, 928 [2008]). We also note that the parties subsequently litigated the overcharge claim in Supreme Court.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

Decision Date: September 25, 2019