2004 NY Slip Op 51279

At the close of Respondent's case Petitioner moved to dismiss Respondent's counterclaims relating to the condition of the demised premises based upon the lease provision that required the Respondent to make all repairs (other than structural) and his assertion that any such conditions were insignificant as a matter of law and/or created by the Respondent himself. In opposition Respondent argued that RPAPL section 235 does not allow for waiver in the lease of habitability requirements and that the conditions do require abatement of rent and reimbursement of expenses incurred by the respondent in making repairs. Additionally, respondent moved to dismiss the late fee provision of the lease as unenforceable. The court reserved decision on these additional issues and again requested that counsel for both parties [*2]brief the applicability of the Real Property Law 235-b to the subject premises; the applicability of the doctrine of partial actual eviction to this matter; and whether the late fee required in the lease is a penalty and therefore unenforceable.

The Applicability of the RPAPL Demand Notice Provisions to Petitioner's Claim for Rent, Late Fees and Legal Fees