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DRAFT FOR ATTORNEY REVIEW — NOT FINAL

Grinberg v. Eissenberg (2017)

Citation
Grinberg v. Eissenberg (2017)
Parent Document
Grinberg v. Eissenberg (2017)
Jurisdiction
New York (state)
Effective Date
2017-12-29

Full Text

1,542 chars
Although plaintiff, on appeal, contends that the Civil Court failed to consider a claim for breach of implied warranty of habitability, there was no need for the court do so, since plaintiff did not specifically assert such a claim. Instead, plaintiff objected only to the manner in which the repairs had been done and sought the cost of remedying the allegedly shoddy repairs. To that end, plaintiff sought to introduce the testimony of a contractor who had inspected the premises two years after the repairs had been done. Although the contractor noted the presence of mold, neither he nor plaintiff ever maintained that the mold in the bathroom rendered the apartment dangerous, hazardous or otherwise uninhabitable (see Decrescenzo v Kalba, 8 Misc 3d 129[A], 2005 NY Slip Op 51031 [App Term, 2d Dept, 9th & 10th Jud Dists 2005] ["defendants, who resided on the first floor, have failed to show how their health or well being were affected by the mold in the basement"]; see generally Martin v 159 W. 80 St. Corp., 3 AD3d 439 [2004] [air quality tests revealed high levels of highly toxic fungus due to mold from a water leak]). Absent proof of any threats to plaintiff's health or safety, or that the leak or resulting repairs somehow rendered the apartment uninhabitable or unfit for use, there was no evidence from which the trial court could reasonably find a breach of implied warranty of habitability (see Sollow v Wellner, 86 NY2d at 589; Park W. Mgt. Corp. v Mitchell, 47 NY2d at 328 [1979]; Grammar v Turits, 271 AD2d 644 [2000]).