Conversely, the court may not grant respondents' counterclaim directing petitioner to return
the $30,267 in escrow funds that petitioner has long drawn down. The court does not have the
jurisdiction to direct that relief. Also, respondents, having agreed in writing in April 2003 to
allow petitioner to use the funds for rent, may not now withdrawn their consent. Respondents
argue that petitioner was not authorized to draw down the escrow funds without their prior notice
and permission, but Shearman's April 2003 letter obviated the need for notice and provided the
required permission.
II. The Abatement Claim
The second
issue concerns respondents' warranty-of-habitability and abatement defense and counterclaims.
The court finds respondents' arguments over heat, mice and roaches, and asbestos in their
basement storage area frivolous and disagrees with them in full.
As to the alleged problem with heat since 2002, respondents come forward only with a vague
log itself contradicted by a dozen unsubstantiated heat complaints to the Department of Housing
Preservation and Development. If there were problems with heat, they were caused by one
non-functioning heating unit that, under ¶ 18 (a) of the proprietary lease, was respondents'
obligation to repair or replace. The court rejects as wholly unsupported by the credible evidence
respondents' shifting contentions that any heating problem was the cooperative corporation's
responsibility because (1) if the problem came from the heating unit, respondents used the
cooperative's plumbers to repair the unit; or (2) if the problem did not come from the heating
unit, heat was absent because the building riser did not send heat to the unit.
As to the problem with roaches and mice since 2000, respondents have only themselves to