(see Notice of Motion dated September 30, 2008, Exhibit E thereto).
Footnote 3: The Court has requisitioned the
Supreme Court file under Index Number 103156/07 and has taken judicial notice of all of the
contents of said file as well as all decisions and orders issued therein.
Footnote 4: Assuming arguendo the
claim of breach of warranty of habitability were not barred by res judicata, the Court
does not find that Respondents are entitled to any rent abatement in this proceeding. Petitioner
was prepared within 4 days of the incident to cut out and replace any damaged sheetrock in the
Subject Premises. Respondents prevented them from doing this work for years. If in fact there is
a mold condition in the Subject Premises, it was caused by Respondents repeated and
unreasonable failure to allow Petitioner access to address the condition precluding an award of
an abatement (56 MacDougal St Co v. Miller, NYLJ April 24, 1990, p. 22 at 3 [App.
Term 1st Dept]), compounded by Respondents failure to have the work done themselves and
seek reimbursement from Petitioner.