that plaintiff's cause of action was properly dismissed since plaintiff failed to adequately
establish the damages he had sustained as a result of the alleged breach of the lease agreement
(CCA 1804). With respect to defendant's counterclaims, a review of the record indicates that
defendant failed to establish that she sustained any personal injuries. As to defendant's
counterclaim for property damage, Real Property Law § 235-b does not permit a tenant to
recover for damage to personal property resulting from a breach of the warranty of habitability
(Concetto v Pedalino, 308 AD2d 470 [2003]). Moreover, defendant was not entitled to
recover damages for breach of the warranty of habitability since her rent was paid by a third
party (cf. Committed Community [*2]Assoc. v Croswell,
171 Misc 2d 340, 344 [App Term, 2d & 11th Jud Dists 1997]). Regarding defendant's
counterclaim for loss of time from work, even assuming that such a claim in this instance is
compensable, defendant presented no evidence to support an award of damages.
Consequently, in order to render substantial justice according to the rules and principles of
substantive law (CCA 1807), we modify the judgment by striking the award in favor of
defendant in the principal sum of $5,000 and by providing that the counterclaims are dismissed.
Golia, J.P., Pesce and Weston, JJ., concur.
Decision Date: December 15, 2009