With respect to July 2019 rent, based upon the facts herein and the reasons fully set forth above, pursuant to Real Property Law § 223-a the subject lease was rescinded. However, as with June 2019 where the court applied a fair use and occupancy analysis, because plaintiff had personal belongings in the apartment in July 2019 the court finds that 50% of the{**65 Misc 3d at 899} monthly rental value is what defendant is entitled to for plaintiff's storage use of the premises both for June and July of 2019, for a total of $1,175. Plaintiff's first month's rent payment of $1,175 offsets this amount and, accordingly, no monies are awarded to defendant on its counterclaim.
The court finds that even in the absence of a determination that the lease was rescinded and, thus, assuming a claim for rent could be pursued by defendant for the subject two month period when plaintiff possessed the premises, since plaintiff established that significant problems existed in the apartment, the court's application of the warranty of habitability doctrine in this case would result in the conclusion that a 50% rent abatement was justified for the months of June and July 2019. The factual findings that support a 50% rent abatement [*6]determination include plaintiff's testimony and supporting documentation (plaintiff's exhibit 8) establishing that the problem with the shower and other issues existed during those two months (see H & R Bernstein v Barrett, 101 Misc 2d 611 [Civ Ct, Bronx County 1979] [where tenant prevented from bathing, breach of warranty found and a 50% abatement justified]).