1180 50th St. Assoc. Inc. v Topolenko

[*1] 1180 50th St. Assoc. Inc. v Topolenko 2005 NYSlipOp 51040(U) Decided on July 1, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 1, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: July 1, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : GOLIA, J.P., RIOS and BELEN, JJ.
2004-226 K C

1180 50th Street Assoc. Inc., Respondent,

against

Larisa Topolenko, Appellant.

Appeal by tenant from a final judgment of the Civil Court, Kings County (M. Sikowitz, J.), entered on January 20, 2004, awarding landlord possession and the sum of $5,950.

Final judgment unanimously modified by reducing the monetary award to landlord to the sum of $5,355; as so modified, affirmed without costs.

In this nonpayment summary proceeding, tenant, who admitted that she had not paid rent during the period at issue, failed to satisfy her burden of establishing a breach of the warranty of habitability. Tenant's general claims as to the nature of conditions in the apartment and tenant's notice of these conditions to landlord, do not suffice to meet
tenant's burden (see e.g. Park West Mgt. Corp. v Mitchell, 47 NY2d 316 [1979]; 5001
15th Ave. Co. v Klein, 2003 NY Slip Op 51128[U] [App Term, 2d & 11th Jud Dists]; Eke v Ayanru, NYLJ, Mar. 20, 2002 [App Term, 2d & 11th Jud Dists]). It must be noted in this context that in a decision in a prior proceeding, made on April 1, 2003, the court (R. Birnbaum, J.) found, on the record, that tenant did not dispute that repairs had been completed as of that date, and that tenant gave no evidence in the present matter as to how new conditions needing repairs might have arisen. Nor did tenant appeal the prior determination.

However, the final judgment must be reduced to the extent indicated because the decision on the record in the prior proceeding clearly establishes that the award therein includes rent for the month of April 2003, and the monetary award in the present proceeding duplicates this portion of the prior award.
Decision Date: July 01, 2005