LINDVILLE HOUSING CO INC v. McGANN McGANN WAYNE (1997)

Supreme Court, Appellate Division, First Department, New York.

LINDVILLE HOUSING CO., INC., Petitioner-Respondent, v. S. McGANN & Joyce McGann, Deceased by Marcia McGANN-WAYNE, Distributee, Respondent-Appellant.

Decided: September 23, 1997

Before SULLIVAN, J.P., and ELLERIN, NARDELLI, WILLIAMS and ANDRIAS, JJ.

Geoffrey Wright, for petitioner-respondent. Nancy L. Swift, for respondent-appellant.

Order of the Appellate Term of the Supreme Court, First Department, entered June 20, 1996, which, insofar as appealed from, affirmed a judgment of the Civil Court, Bronx County (Howard Trussel, J.), entered on or about May 19, 1994, awarding petitioner $9,501.70 in maintenance arrears, unanimously affirmed, without costs.

Petitioner did not have a duty to mitigate the amount of unpaid maintenance by processing respondent's application for section 8 benefits while respondent's application to become a successor tenant was pending before the Department of Housing Preservation and Development. A section 8 application would be premature until such time as respondent achieves the status of tenant. In the meantime she is liable for use and occupancy equal to the maintenance paid by the prior tenant (28 RCNY 3-02[p][8] [iii] ). Respondent's unresolved status also renders premature her claim that she was constructively evicted by what she characterizes as petitioner's “constant stream of admonishments” that she had no right to remain in the apartment; in any event, such admonishments, assuming their accuracy as described by respondent, do not amount to a constructive eviction.

MEMORANDUM DECISION.

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