Cunningham v Tennis Ct. LLC

[*1] Cunningham v Tennis Ct. LLC 2007 NY Slip Op 52203(U) [17 Misc 3d 134(A)] Decided on November 19, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 19, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : WESTON PATTERSON, J.P., GOLIA and BELEN, JJ
2006-1681 K C.

Lawanda Cunningham, Respondent,

against

Tennis Court LLC, Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Delores J. Thomas, J.), entered March 31, 2006. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,306.

Judgment reversed without costs and action dismissed.

In this small claims action, plaintiff seeks to recover from her landlord for damage to her property caused by a leak emanating from an upstairs apartment. The evidence at trial indicated that the damage occurred after the upstairs tenant flushed her toilet, and a pipe connected to the toilet "flew out" of the wall. Instead of notifying the landlord of the water gushing out of the pipe, the upstairs tenant left her apartment and went to work. On these facts, defendant correctly contended that it could not be found liable based on negligence. However, finding that defendant had breached the warranty of habitability (Real Property Law § 235-b), the court below imposed strict liability on defendant and awarded plaintiff consequential damages.

As consequential damages are not recoverable for a breach of the warranty of habitability (see e.g. Concetto v Pedalino, 308 AD2d 470 [2003]; 303 Beverly Group v Alster, 190 Misc 2d 69 [App Term, 2d & 11th Jud Dists 2001]; Bay Park One Co. v Crosby, 109 Misc 2d 47 [App Term, 2d & 11th Jud Dists 1981]), the trial court's judgment did not properly provide the parties with substantial justice according to the rules and principles of substantive law (CCA 1807; see Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125 [2000]). Accordingly, the judgment is reversed [*2]and the action dismissed. Weston Patterson, J.P., Golia and Belen, JJ., concur.