People ex rel. Higgins v. Peranzo, 179 A.D.2d 871 (1992)

As for respondents’ argument that a triable issue of fact exists with respect to their alleged violation of the implied warranty of habitability contained in Real Property Law § 233 (m), this argument is also meritless. Nowhere do respondents dispute the existence of septic problems exactly as described in the petition and the tenants’ affidavit. They merely allege that the tank was pumped twice in June 1989 and that they ultimately had to seal off the site completely and not allow any tenants to live there. Conspicuously absent from both respondents’ answer and affidavit is language amounting to an affirmative defense that the septic problems were caused by *874actions of the tenants. Respondents only state that they initially believed it was the tenants’ responsibility to repair the problem but later revised that view and attempted to repair it themselves. Accordingly, we also find no error in Supreme Court’s finding of guilt and imposition of a fine with respect to this violation.