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DRAFT FOR ATTORNEY REVIEW — NOT FINAL

303 Beverly Group, L. L. C. v. Alster, 190 Misc. 2d 69 (2001)

Citation
303 Beverly Group, L. L. C. v. Alster, 190 Misc. 2d 69 (2001)
Parent Document
303 Beverly Group, L. L. C. v. Alster, 190 Misc. 2d 69 (2001)
Jurisdiction
New York (state)
Effective Date
2001-10-23

Full Text

1,771 chars
In this nonpayment proceeding, tenant asserted breach of the warranty of habitability as an affirmative defense. The parties thereafter entered into a “stipulation in settlement of issues” providing in pertinent part that , the landlord “inspect and repair and replace as required by law: a) paint apt * * * (b) leak in bedroom ceiling (c) leak in living room wall * * * (f) polyurethane living room and dining room floors.” Real Property Law § 235-b (2) provides that “[a]ny agreement by a lessee or tenant of a dwelling waiving or modifying his rights as set forth in this section shall be void as contrary to public policy.” The entry into the court ordered stipulation of settlement, however, operated as an accord and satisfaction, precluding tenant from recovery of damages pertaining to any breach of the warranty of habitability occurring prior to the execution of the settlement agreement (see, Couri v Westchester Country Club, 186 AD2d 712, 714-715). Accordingly, tenant’s claim for money damages in the sum of $450, representing the alleged cost of moving the furniture in his apartment to enable landlord’s performance of repairs under the stipulation, and other relief, to the extent that it relies on an alleged breach of warranty preceding the date of the settlement agreement, is meritless. Denial of tenant’s claim for money damages was proper for the additional reason that consequential damages are not recoverable for the breach of the warranty of habitability (Bay Park One Co. v Crosby, 109 Misc 2d 47; cf., Couri v *71Westchester Country Club, supra, at 715 [damage to personal property is not recoverable under Real Property Law § 235-b]; see also, Mastrangelo v Five Riverside Corp., 262 AD2d 218; Elkman v Southgate Owners Corp., 233 AD2d 104).