that the delayed correction of the leaking terrace was a deliberate decision of the
petitioner which was a "management decision"]).
C. Quiet Enjoyment (Plaintiff's third cause of action)
As Defendants argue, Plaintiff cannot prevail on the third cause of action for breach
of the covenant of quiet enjoyment because the Lease makes payment of rent a condition
precedent to the covenant and Plaintiff withheld nearly all payments dating from 2007 to
the present (Lease/Amended Lease ¶ 10; Dance Magic, Inc. v Pike Realty,
Inc., 85 AD3d 1083, 1088 [2d Dept 2011]; Parker v Marglin, 56 AD3d 374, 374 [1st Dept 2008]).
Accordingly, Plaintiff's third cause of action against the Cooperative for breach of the
covenant of quiet enjoyment is dismissed.
C. Diminution of value (Plaintiff's fifth cause of action)
As discussed above, diminution of value is not recoverable upon claims for breach of
[*11]warranty of habitability (Elkman, 233 AD2d
at 105). Additionally, that claim duplicates claims for breach of the covenant of quiet
enjoyment and constructive eviction and, on that basis alone, should be dismissed
(Mariaux v Turtle Bay Towers Corp., 2002 NY Slip Op 50518(U) [Sup Ct NY
County], affd as mod on other grounds, 301 AD2d 460 [1st Dept 2003]).
Substantively, however, Plaintiff has also failed to adduce any credible evidence at trial
of diminution; to the contrary, she has placed the Apartment on the market for a
substantial sum. Accordingly, this cause of action is also dismissed.
E. Attorneys' fees (Plaintiff's eighth cause of action)
Both parties seek attorneys' fees—the Corporation under the Lease and
Plaintiff pursuant to RPL § 234. Whether to award fees requires consideration of
"the true scope of the dispute litigated, followed by comparison of the amount actually