LLC v. Jose Perez, Respondent-Tenant-Appellant. (2026)

Per Curiam.

Appeal from decision/order (David J. Bryan, J.), entered on or about May 6, 2024, deemed an appeal from the ensuing final judgment (David J. Bryan, J.), entered on or about October 30, 2024, and so considered (see CPLR 5520 [c]), final judgment affirmed, with $25 costs.

On appellate review of a nonjury trial, "the findings of fact should be viewed in a light most favorable to sustain the judgment, due deference should be accorded Trial Term in matters of credibility, and the findings of fact should not be disturbed unless such determination could not have been reached under any fair interpretation of the evidence" (Matter of Metropolitan Transp. Auth., 86 AD3d 314, 320 [2011][internal quotation marks and citation omitted]). Based on the record, the court's rejection of tenant's warranty of habitability defense is entitled to deference. Although the court found that there were rent impairing violations at the subject apartment, the court found that tenant failed to "consistently ma[k]e the apartment available to perform repairs" and that the "evidence and testimony" demonstrated that tenant "chose not to make himself available for inspections and repairs," or the "extermination services readily available to all tenants in the building" (see LGS Realty Partners LLC v Kyle, 49 Misc 3d 143[A], 2015 NY Slip Op 51643[U][App Term, 1st Dept 2015]; West 122nd St. Assoc., L.P. v Gibson, 5 Misc 3d 137[A], 2004 NY Slip Op 51578[U] [App Term, 1st Dept 2004]).

Tenant's counterclaim of harassment was abandoned, since he failed to raise it during the trial or his post-trial memorandum of law. Were we to review defendant's counterclaim, we would find it to be without merit, since it is premised on duplicate facts rejected by the court on his warranty of habitability claim.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

Decision Date: October 20, 2026