MISRA v. Masters Apts., Inc., Defendant-Respondent-Appellant. (2007)

Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered July 17, 2006, which, to the extent appealed from, denied the motions by defendants Brown Harris Stevens Residential Sales and Anderson, and by defendant Masters Apts., for summary judgment dismissing the complaint as to them, and granted plaintiff's cross motion for summary judgment on the seventh cause of action against Masters without limiting damages to a partial rent abatement, unanimously affirmed, without costs.

 In this action by the purchaser of a cooperative apartment, defendant realtors' summary judgment motion was properly denied on the ground that plaintiff had presented sufficient circumstantial evidence raising triable issues of fact (see Jablonski v. Rapalje, 14 A.D.3d 484, 486, 788 N.Y.S.2d 158 [2005];  Koeppel v. City of New York, 205 A.D.2d 402, 613 N.Y.S.2d 389 [1994] ) as to whether the realtors had actively concealed the noise of a ventilation system located directly above the apartment by tampering with the fan speed.

 Plaintiff met her burden of proving that the cooperative violated the warranty of habitability (see Jablonski v. Rapalje, 14 A.D.3d 484, 788 N.Y.S.2d 158, supra ).   However, because the remedy for such a breach is not restricted to a rent abatement (see Park W. Mgt. Corp. v. Mitchell, 47 N.Y.2d 316, 329, 418 N.Y.S.2d 310, 391 N.E.2d 1288 [1979], cert. denied 444 U.S. 992, 100 S.Ct. 523, 62 L.Ed.2d 421 [1979];  German v. Federal Home Loan Mtge. Corp., 885 F.Supp. 537, 568 [S.D.N.Y.1995] ), the court properly held that the amount of damages should be determined at trial.

We have considered the parties' remaining arguments for affirmative relief and find them without merit.