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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Footnote 13:As for Dogwood LLC's
assertion that it was withholding monthly maintenance because of the alleged breach of the
warranty of habitability and the failure to make repairs, this Court notes that the proprietary lease
prohibits the withholding of rent on account of any set-off or claim that the lessee might have
against the lessor. Peterson affidavit in support of motion to dismiss the amended 2017
complaint, exhibit 2, Proprietary lease, ¶ 12; see also Dune Deck Owners Corp. v Liggett, 34 AD3d 523, 524 (2d
Dept 2006) (cooperative corporation properly granted summary judgment for maintenance
arrears and late fees, where proprietary lessee waived right to any offset pursuant to terms of
proprietary lease ¶ 12, which provision was identical to ¶ 12 of the proprietary lease
in the instant case). See Dune Deck Owners Corp. v J.J. & P. Assoc. Corp., 2008
NY Slip Op 31676 [U] [Supreme Ct, Suffolk County, 2008], *3); see also 170 West End Ave. Owners Corp.
v Turchin, 37 Misc 3d 1226(A) (Civil Ct, NY County 2012), 2012 NY Slip Op
52185(U), *7-*9. Proprietary lease paragraph 4 (b) provides for a rent abatement, but only when
a fire or other cause has rendered the Apartment "wholly untenantable" or when the means of
access to the Apartment has been destroyed. Cf. generally Granirer v Bakery, Inc., 54
AD3d at 270-271.

Footnote 14:The original July 2015
complaint contains allegations regarding the cellar units' failure to conform to the certificate of
occupancy in partial support of plaintiffs' cause of action alleging that Stable breached its
fiduciary duty to plaintiffs, based on a claim of disparate treatment, for which plaintiffs sought
monetary damages and an order directing Stable to remedy the lack of compliance with the