uses reasonably intended by the parties, and free from conditions dangerous to life,
health, or safety (Scherer/Fisher, Residential Landlord Tenant L. in NY, §
12:65). Breach of this warranty can be the basis of a defense to a nonpayment proceeding
or support a separate affirmative claim (id.).
As an initial matter, the Court notes that Plaintiff may not recover damages for loss
or diminution in value of personal property, personal injury, or pain and suffering on a
claim for breach of the implied warranty of habitability (Elkman v Southgate Owners
Corp., 233 AD2d 104, 105 [1st Dept 1996] ["Loss or diminution in value of personal
property as well as personal injuries and pain and suffering are not recoverable under
Real Property Law [RPL] § 235-b."]). Accordingly, any claim to that effect must be
denied.
The proper measure of damages for a breach of the warranty of habitability is the
difference between the fair market value of the premises in fully habitable condition, as
measured by the rent reserved under the lease, and the value of the premises during the
period of the breach (Park W. Mgt. Corp. v Mitchell, 47 NY2d 316, 329 [1979]).
The award may take the form of a sum of money awarded the tenant in a plenary action
or a 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 to maintain the premises in habitable condition (id.).
Complete vacatur is not necessary to receive an abatement; it is sufficient to have
been [*7]constructively evicted from a portion of the
premises (Minjak Co. v Randolph, 140 AD2d 245, 248 [1st Dept 1988]). The
finder of fact must weigh the severity and duration of the breach, as well as the