From February to April 2016, after Plaintiff had granted access but before the
Apartment was rendered habitable, Plaintiff is again entitled to a full abatement because
she allowed access and therefore mitigated damages while the Apartment remained
uninhabitable. After April 2016, when the Corporation completed the repairs, the
Apartment was again habitable and the abatement ceases. Though at least one leak
occurred after those repairs, it was quickly remedied upon notice.
B. Punitive damages
"A demand or request for punitive damages is parasitic and possesses no viability
absent its attachment to a substantive cause of action" (Entler v Koch, 85 AD3d
1098, 1102 [2d Dept 2011]). In a breach of the warranty of habitability case,
punitive damages may be awarded only "where the landlord's actions or inactions were
intentional or malicious" (Minjak Co. v Randolph, 140 AD2d 245, 249-50 [1st
Dept 1988] [" this record supports the jury's finding of morally culpable conduct in light
of the dangerous and offensive manner in which the landlord permitted the construction
work to be performed, the landlord's indifference to the health and safety of others, and
its disregard for the rights of others, so as to imply even a criminal indifference to civil
obligations."]).
Thus, Plaintiff's contention of intentional or malicious conduct is belied by the
evidence discussed above; specifically, that Plaintiff was substantially responsible for the
lengthy delay (cf Kipsborough Realty Corp. v Goldbetter, 81 Misc 2d 1054, 1059
[Civ Ct NY County 1975] ["deliberate and persistent refusal for three years after notice
"]; Century Apartments, Inc. v Yalkowsky, 106 Misc 2d 762, 766 [Civ Ct NY
County 1980] [Awarding punitive damages of $1,000.00 "based upon the clear evidence