Park West Mgt. v Mitchell, 47 NY2d 316, 328 [1979]; see Assoc. v C.W., 24 Misc 3d
1225[A]; 2009 NY Slip Op 51617[U] [NY Civ Ct 2009]). Although the "landlord is
not required to ensure that the premises are in perfect or even aesthetically pleasing
condition; he does warrant, however, that there are no conditions that materially affect
the health and safety of tenants" (Park W. Mgt. Corp. v Mitchell, 47 NY2d 316,
328 [1979]). Among the conditions which materially affect the "health or safety" of the
occupants of a building are "insect or rodent infestation, insufficient heat and plumbing
facilities, significantly dangerous electrical outlets or wiring, inadequate sanitation
facilities or similar services which constitute the essence of the modern dwelling unit"
(id. at 328). In ascertaining damages for a violation of the warranty, "the finder of
fact must weigh the severity of the violation and duration of the conditions giving rise to
the breach as well as the effectiveness of steps taken by the landlord to abate those
conditions" (id. at 329; Elkman v Southgate Owners Corp., 233 AD2d
104, 105 [1996]). "Inasmuch as the duty of the tenant to pay rent is coextensive with the
landlord's duty to maintain the premises in habitable condition, the proper measure of
damages for breach of the warranty is the difference between the fair [*5]market value of the premises if they had been as warranted,
as measured by the rent reserved under the lease, and the value of the premises during the
period of the breach," and may take the form of a rent abatement or "percentage
reduction of the contracted-for rent as a setoff in summary nonpayment proceeding in
which the tenant counterclaims or pleads as a defense breach by the landlord of his duty