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

Fred MENGONI, Petitioner-Appellant, v. Marc PASSY, Respondent-Respondent.

Decided: October 27, 1998

Before SULLIVAN, J.P., ROSENBERGER, WILLIAMS and ANDRIAS, JJ. Charles Small, for Petitioner-Appellant. Adolph D. Seltzer, for Respondent-Respondent.

Order, Appellate Term of the Supreme Court, First Department, entered November 21, 1997, which, in a holdover proceeding, insofar as appealed from, affirmed a judgment of the Civil Court, New York County (Anne Katz, J.), entered June 24, 1996, dismissing the proceeding after trial, unanimously affirmed, without costs.

We decline to disturb the factual determination reached by the Civil Court and a majority of the Appellate Term that the appliances and items removed and replaced or fixed by respondent-including kitchen cabinets, air conditioners, refrigerators and bathroom sink-were in a defective state, and that the landlord did not respond to tenant's repeated complaints and demands to have the items fixed (see, Thoreson v. Penthouse Intl., 80 N.Y.2d 490, 495, 591 N.Y.S.2d 978, 606 N.E.2d 1369).   Accordingly, the unilateral action undertaken by respondent was warranted, and was not a substantial breach of the “no alterations” clause of the lease (compare, Britton v. Yazicioglu, 189 A.D.2d 734, 592 N.Y.S.2d 737).