2018 NY Slip Op 51958

Citation
2018 NY Slip Op 51958
Jurisdiction
New York (state)
Source verification
cross_accepted_sealed
Original Source
https://www.nycourts.gov/reporter/3dseries/2018/2018_51958.htm ↗

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complaint does not allege that he was a party to a lease or any rental agreement, he and a spouse,
if any, admittedly have never occupied the Apartment, much less occupied it as their primary
residence, as required by Real Property Law § 235-f (3). Nor does the amended 2017
complaint allege that Blumenfeld ever intended to occupy the Apartment as his primary
residence. See 445/86 Owners Corp. v Haydon, 300 AD2d at 88. Further, Dogwood LLC
has never occupied the Apartment and is not capable of doing so. Given the foregoing, this cause
of action seeking declaratory relief fails to state a viable claim. Therefore, the branch of
defendants' motion seeking an order dismissing the amended 2017 complaint's sixth cause of
action is granted, and that cause of action is dismissed.

Breach of Warranty of Habitability

The amended 2017 complaint's seventh cause of action,
which seeks monetary damages as well as a full rent abatement until the claimed violations are
remedied, purports to allege on Dogwood LLC's behalf a cause of action for breach of the
warranty of habitability predicated on Real Property Law §235-b. Amended 2017
complaint, ¶¶ 183. That statute provides that, in every residential lease, whether
written or oral, "the landlord or lessor shall be deemed to covenant and warrant that the premises
so leased or rented . . . are fit for habitation and for uses reasonably intended by the parties . . . ."
The tenant's obligation to pay rent under the lease "is dependent upon the landlord's satisfactory
maintenance of the premises in habitable condition." Park W. Mgt. Corp. v Mitchell, 47
NY2d 316, 327 (1979), cert den 444 US 992 (1979). The warranty of habitability applies
to tenant-shareholders in cooperative buildings. Frisch v Bellmarc Mgt., 190 AD2d 383,