360 WEST 51ST STREET REALTY LLC v. CORNELL

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Supreme Court, Appellate Term, New York.

360 WEST 51ST STREET REALTY, LLC, Petitioner-Landlord-Appellant, v. Brenda CORNELL, “John Doe” and “Jane Doe,” Respondents-Tenants-Respondents.

Decided: January 30, 2007

Present:  McKEON, P.J., DAVIS, SCHOENFELD, JJ. Landman Corsi Ballaine & Ford P.C., New York City (James E. Davies and Samantha D. Migdal of counsel), for appellant. Gallet Dreyer & Berkey, LLP, New York City (Beatrice Lesser, Morrell I. Berkowitz and Erica J. Stien of counsel), for respondents.

Final judgment (Ernest J. Cavallo, J.), entered August 22, 2005, affirmed, with $25 costs.   Appeal from orders (Anthony J. Fiorella, Jr., J.), entered June 15, 2004 and June 10, 2004, dismissed, without costs, as subsumed in the appeal from the final judgment.

 A fair interpretation of the voluminous trial evidence, including the opinion testimony offered by tenant's environmental and medical experts, supports the trial court's fact-laden determination that landlord breached the warranty of habitability through its demolition and debris removal work in the building's basement, which caused “metallic dust and fungi” to enter into tenant's ground floor apartment (see Park West Management Corp., v. Mitchell, 47 N.Y.2d 316, 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] ).   The record shows that tenant promptly notified landlord of the deleterious health effects caused by its construction, and, as the trial court expressly found, landlord “did absolutely nothing to examine her complaint or acknowledge the possibility of a problem or call in an expert to evaluate the situation․” The abatement award, though substantial, was warranted in light of the serious nature of the apartment conditions shown to exist.

We have considered landlord's remaining arguments and find them unavailing.

This constitutes the decision and order of the court.

PER CURIAM.