Herzberg v Montesano

[*1] Herzberg v Montesano 2005 NY Slip Op 51689(U) [9 Misc 3d 135(A)] Decided on October 20, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 20, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., WESTON PATTERSON and GOLIA, JJ.
2005-42 Q C

IAN M. HERZBERG, Respondent,

against

LOUIS MONTESANO, Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Bernice D. Siegal, J.), entered July 19, 2002. The judgment awarded plaintiff the sum of $4,764.80 and dismissed defendant's counterclaims.

Judgment unanimously affirmed with $25 costs.

In view of (1) defendant's statement to plaintiff on July 7, 2001 that "it would be in everyone's interest if plaintiff moved out," (2) defendant's August 7, 2001 letter to plaintiff advising him that, if he wanted to terminate the lease, defendant would discharge him from all his obligations under the lease, (3) defendant's letters to plaintiff of August 13, 2001 and August 16, 2001 notifying him that the lease would terminate on [*2]
August 17, 2001, and (4) defendant's barring entry to plaintiff's family on August 17, 2001, until the police were called, the Civil Court did not err in holding that plaintiff's vacating the apartment thereafter was pursuant to an offer by defendant to accept a surrender of the lease, which offer plaintiff accepted (Baldwin v Cohen, 132 App Div 87 [1909]; Zipser v Dunst, 153 NYS 394 [1915]). Contrary to defendant's contention, plaintiff is not chargeable with negligence with respect to the damage caused by the sewer backing up, because only defendant, who was aware of the fact that tree roots had blocked the sewer lines four years earlier, knew or had reason to know of the urgency of the situation presented by the fact that the basement sink was draining slowly and defendant failed to communicate this knowledge to plaintiff. We have examined defendant's other contentions and find them to be equally without merit.
Decision Date: October 20, 2005