The proposed amendment does not seek to replace the measure of damages for the alleged breach of the implied warranty of <mask>. The third cause of action in the proposed amended complaint still refers to plaintiff being damaged in the sum of $500,000. All the proposed amendment does is add to the ad damnum clause a phrase which requests $4,900 for diminution in rental value as an alternative to the $500,000 in compensatory damages. Moreover, plaintiff made no evidentiary showing that her claim of $4,900 in diminution in rental value can be supported (see, Mathiesen v Mead, 168 AD2d 736, 737). In these circumstances, we see no basis to disturb Supreme Court’s order.


The only issue before the court is what is to be the measure of damages for an abatement hearing on the breach of the implied warranty of <mask>. The respondent is a section 8 tenant who pays a share of the rent while the Department of Housing and Urban Development (HUD) makes section 8 *757payments to complete the balance of the rent charged. The petitioner argues that the measure of damages is the tenant’s share of the rent, and not the combined amount of the tenant’s monthly share plus the section 8 monthly payment made to the petitioner by HUD on the respondent’s behalf. The respondent argues that the scope of damages must be the aforementioned combined amount which is called the "contract rent” by HUD.


Separate Statement No. 21 stated, “The only evidence regarding causation is from Mazza’s testimony that her worn out bath mat may have been the cause of [appellant’s] slip-and-fall because the rubber traction on the bottom of the bath mat was worn away.” Mazza testified that there was a bath mat in the bathroom the night appellant fell, and that it was around the base of the commode. She stated that the “mat was screwed on the backside, and I threw it away after [appellant] fell because I thought that may have had something to do with it.” Mazza added that she was aware the rug did not have a “whole lot of traction[.]” Opposing Papers Appellant opposed the motion and argued that it had to be denied because there were triable issues as to whether Cassell breached ordinary and statutory duties by failing to maintain the stairs in a safe and habitable condition. According to appellant: (1) Cassell had a duty to remedy the stairway under the implied warranty of <mask> and Civil Code sections 1941 and 1941.1 6 regardless of notice; 7 (2) the failure to maintain a building in a


Petitioner’s position is supported by Cosmopolitan Assoc. v Ortega (90 Misc 2d 437). In Cosmopolitan, the tenant counterclaimed for damages for negligence (for which the landlord was insured) and for breach of the warranty of <mask> (for which the landlord had no insurance coverage). A clause in the lease prohibited counterclaims of any kind. The court severed the counterclaim for negligence but permitted the cause of action based on breach of the warranty, reasoning that while a negligence counterclaim may validly be covenanted away, one based on breach of the warranty of habitability may not, pursuant to the explicit terms of section 235-b of the Real Property Law. However, the court limited recovery on that counterclaim to the rent demanded in the petition, so that the landlord not be answerable for damages otherwise covered by his insurance policy.


The circuit court relied on King in barring her from asserting a breach of the implied warranty of <mask>. In King , a landlord sued a tenant for rent and possession. 495 S.W.2d at 67. The tenant lost in the magistrate court and vacated the premises before appealing to the circuit court. Id. The tenant asserted, as an affirmative defense, that the landlord breached an implied covenant to provide premises in a safe, sanitary, and habitable condition. Id. at 68. The circuit court determined the tenant failed to state a valid defense. Id. The court of appeals reversed, holding the tenant stated a valid defense because all residential leases include an implied warranty of habitability obligating lessors to guarantee the "dwelling is habitable and fit for living at the inception of the term and that it will remain so during the entire term." Id. at 75.


Remaining is the warranty of <mask> issues caused by the unremediated code violations. Pursuant to Real Property Law § 235-b, every residential lease contains an implied warranty of habitability which is limited by its terms to three covenants: (1) that the premises are fit for human habitation, (2) that the premises are fit for the uses reasonably intended by the parties, and (3) that the occupants will not be subjected to conditions that are dangerous, hazardous or detrimental to their life, health or safety. Despite the expansive language of the statute, the Court of Appeals has


Consideration of the counterclaims for punitive damages and the intentional infliction of mental distress was allowed because the facts pleaded for the warranty claim also served as the foundation for these two counterclaims. The elements of proof involved are similar to those which must be taken into account in relation to the warranty of <mask> as defined by the Court of Appeals in Park West Mgt. Corp. v Mitchell (47 NY2d 316, 329): “In ascertaining damages, the finder of fact must weigh the severity of the violation and duration of the conditions giving rise to the breach as well as the effectiveness of steps taken by the landlord”. Given that the warranty counterclaim was to be tried, all three counterclaims were “intertwined with the landlord’s petition and * * * equitably tied together,” in which instance a court has an “equitable power to disregard” such a provision barring counterclaims with the recognition that the power “should be sparingly used and only if warranted by the circumstances at issue.” (50 Ct. Co. v Wild, NY LJ, Feb. 21,1978, p 13, col 1.)


As authority for the proposition that the petitions need assert compliance with the warranty of <mask> (Real Property Law, § 235-b) the court below relies upon Houston Realty Corp. v Castro (94 Misc 2d 115). There exists no appellate authority for that proposition and to our view the court in Houston Realty Corp. v Castro (supra), erred in casting as a jurisdictional requisite to nonpayment proceedings a requirement that nonpayment petitions allege compliance with the warranty of habitability.


The evidence presented by respondent in support of his counterclaim for breach of warranty of <mask> begins in August 1999 with his fax, dated August 10, 1999, notifying petitioner about a leak in the bathroom ceiling. Respondent included a request to restore lights in the bathroom, to correct a structural defect in the bathroom wall and ceiling, to replace bathroom tiles and do caulking, repair the kitchen sink cabinet, and repair the kitchen stove. Respondent testified credibly that in addition to the fax sent to “Arthur,” he also called the super and informed him that the water leaking from the bathroom ceiling was coming through the electrical light fixture in the bathroom, and that the chronic and reoccurring crack in the bathroom wall had returned. The super came to respondent’s apartment and inspected the bathroom in response to the August 1999 fax. Several weeks later, when no repairs had been attempted, the super informed respondent Henry that the roof leak, the apparent cause of the bathroom leaks, had still not yet been repaired. Mr. Brown testified that a roof repair is not within the province of the super and it is an “unusual” repair.


Code of Civil Procedure section 1174.2, subdivision (b), provides, "If the court determines that there has been no substantial breach of Section 1941 of the Civil Code or of any warranty of <mask> by the landlord or if the *64tenant fails to pay all rent accrued to the date of trial, as required by the court pursuant to subdivision (a), then judgment shall be entered in favor of the landlord, and the landlord shall be the prevailing party for the purposes of awarding costs or attorneys' fees pursuant to any statute or the contract of the parties." Code of Civil Procedure section 1174.2, subdivision (c), provides, "As used in this section, 'substantial breach' means the failure of the landlord to comply with applicable building and housing code standards which materially affect health and safety."


The tenant herein successfully defended these nonpayment summary proceedings upon the principal contention that the landlord failed to acquire a certificate of occupancy, in violation of sections 301 and 302 of the Multiple Dwelling Law. Assuming arguendo that the subject premises constitute a multiple dwelling (see Multiple Dwelling Law, § 4, subd 7; Matter of Herzog v Thompson, 50 Misc 2d 488), the defense is inapplicable to the instant case. Section 302 is a penal statute in derogation of the common law and should be strictly construed so that a landlord is not deprived of rent due for the use and occupation of his property (Wokal v Sequin, 167 Misc 463; Matter of Herzog v Thompson, supra; Washington Sq. Professional Bldg. v Leader, 68 Misc 2d 72). The premises in question were constructed prior to the statutory requirement for certificates of occupancy. Their occupation, legal in inception, did not become illegal by virtue of a subsequent alteration made without requisite permission, so as to constitute a defense under the Multiple Dwelling Law to a tenant remaining in possession against the landlord’s demand for rent, especially where the alteration did not adversely affect the <mask> of the structure and the occupation of the premises is not otherwise criminal or illegal (941 Park Ave. Corp. v Fried, 148 Misc 137 [App Term, 1st Dept.]; Tompkins Sq. Holding Co. v Gilson, 167 Misc 77; Washington Sq. Professional Bldg. v Leader, supra; see, also, Chatsworth 72nd St. Corp. v Rigai, 71 Misc 2d 647, affd 74 Misc 2d 298, affd 43 AD2d 685, affd 35 NY2d 984).


Michelle D. Schreiber, J. Petitioner commenced this holdover proceeding against the executor of the estate of Robert Mooney claiming the estate illegally sublet or assigned the rent-stabilized subject premises to underrespondent Frank Garcia. Mr. Garcia is the only respondent who has appeared in the case. On October 9, 2002 he served a written answer in which he asserts succession rights to the subject premises as a nontraditional family member under Rent Stabilization Code (9 NYCRR) § 2523.5 (b) and § 2520.6 (o) (2) because he lived with the deceased prime tenant, Robert Mooney, as his domestic partner for more than two years prior to Mr. Mooney’s death. The answer included a demand for a jury trial. The case was marked off calendar on March 24, 2003 pending document production and a deposition of Mr. Garcia. The discovery was concluded and on November 3, 2003, pursuant to a stipulation, the case was restored to the calendar; the answer was amended only to the extent of including an affirmative defense and counterclaim for breach of warranty of <mask>. The petitioner moved to strike the jury demand and for outstanding use and occupancy; the motion was denied on December 8, 2003 as petitioner failed to appear after checking in to the Part.


And in a law review article by Margaret R. Scherer, entitled New York’s Search for an Effective Implied Warranty of <mask> in Residential Leases (43 Albany L Rev 661, 686), Ms. Scherer states: “In light of the rule that statutes enlarging or limiting common law rights or liabilities should be construed as consistent with existing common law principles unless the intention to overrule such case law plainly appears by express legislative declaration or necessary implication, Kaplan should be overruled as an *132unwarranted extension of section 235-b and the implied warranty of Tonetti.”


Petitioner is entitled to use and occupancy even though respondents allege that petitioner breached the warranty of <mask>. Breach of the warranty of habitability is not a defense that allows respondents to withhold use and occupancy over a five-year period. (See Matter of Notre Dame Leasing v Rosario, 2 NY3d 459, 467 [2004] [finding that tenants “must” deposit use and occupancy under RPAPL 745 even if they “claim() a breach of warranty of habitability” or “seek an abatement”].)


JCW Elecs., Inc. v. Garza , 257 S.W.3d 701, 705 (Tex. 2008) (quoting William L. Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer) , 69 YALE L.J. 1099, 1126 (1960) ). The implied warranties recognized in Texas are: (1) the implied warranty of <mask> for new homes, recognized in Humber v. Morton , 426 S.W.2d 554, 555 (Tex. 1968) ; (2) the implied warranty of good and workmanlike construction, also recognized in Humber , id. ; (3) the implied warranty of merchantability, created by the Uniform Commercial Code, codified in TEX. BUS. & COM. CODE § 2.314 ; (4) the implied warranty of fitness for a particular purpose, also created by the UCC, codified in Tex. Bus. & Com. Code § 2.315 ; (5) the implied warranty of workmanlike repairs of tangible goods or property (at issue in the present case), created in Melody Home Manufacturing Co. v. Barnes , 741 S.W.2d 349, 353 (Tex. 1987) ; and (6) the implied warranty that leased premises are suitable for their intended commercial purpose, recognized in Davidow v. Inwood North Professional Group , 747 S.W.2d 373, 377 (Tex. 1988). We have recognized additional implied warranties that have since been superseded by other law. See Jacob E. Decker & Sons v. Capps , 139 Tex. 609, 164 S.W.2d 828, 829 (1942) (implied warranty of the fitness of food for human consumption), superseded by McKisson v. Sales Affiliates, Inc ., 416 S.W.2d 787, 789 (Tex. 1967) (adopting the Restatement (Second) of Torts § 402A to govern strict liability tort claims for defective products that cause physical harm); Kamarath v. Bennett , 568 S.W.2d 658, 661 (Tex. 1978) (implied warranty of habitability for residential leases), superseded by statute , Act of May 28, 1979, 66th Leg., R.S. ch. 780, §§ 1-18, 1979 Tex. Gen. Laws 1978.


*35However, as the trial proceeded, it became clear that a substantial legal issue was raised as to the availability to the tenants of a partial defense or setoff arising out of the apparent violation of the landlord’s covenants to provide hot water and heat during the winter months. A similar issue was presented as to the landlord’s possible breach of the implied warranty of <mask> arising out of the apparent violation of section 75 of the Multiple Dwelling Law, requiring hot water, and section 79 requiring adequate heat. Since the attorneys for both sides were advised of the court’s concern with these issues, and there was no indication that the landlord was unprepared to meet them, I deem each of the answers amended to incorporate these defenses and setoffs.


In Goldcrest, the litigation involved a claim by a cooperative corporation that a sponsor who held the unsold shares allocated to 15 apartments had failed to pay maintenance, and a claim by the sponsor that it had prepaid the maintenance. The warranty of <mask> was not in issue there, nor could the sponsor, which did not reside in any of the apartments, have raised a warranty of habitability claim. Thus, while this court must follow Goldcrest (see Stadt v Durkin, 35 Misc 3d 128[A], 2012 NY Slip Op 50585[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]), for the reasons that follow, it is our view that Goldcrest does not apply in cases in which a residential tenant withholds rent because of a breach of the warranty of habitability.


Four of the Family Court orders under review order the Authority "to assist [the mother] in obtaining a suitable apartment so as to enable the court to effectuate the discharge of [the child] from the foster care and custody of the Commissioner of Social Services to the [mother] * * * and to submit to the court * * * a written progress report in regard to the aforesaid apartment.” One order directs that "NYCHA shall provide larger apartment for respondent.” One order directs the Authority "to process the application previously filed by Mrs. Osson, to interview her, and to render such information, assistance and cooperation to the court, the Department of Social Services, and Mrs. Osson as may be required to enable Mrs. Osson to find suitable public housing at the earliest possible date * * * [and to] report on the effort made * * * to effectuate this order.” One order directs "necessary repairs * * * to the extent that such premises are' restored to standards of normal <mask> * * * [and to] appear at a hearing * * * to satisfy this court as to the completion date of said repairs.” One order directs that, "The lease * * * should be changed to name of Jean Brown, and her husband should no longer be considered co-leaser.” Another order made after this matter was submitted directed the Authority "to provide suitable housing for Florence Lewis and four children.”


The landlord of the subject apartment building commenced 62 separate summary proceedings for nonpayment of rent, in which respondent tenants sought rent abatements for an alleged breach of the warranty of <mask>. The proceedings were jointly tried over a period of 16 weeks; generated a number of intermediate appeals and related litigation; and culminated in rent abatement awards of 5% for conditions in the dwelling’s public areas, and additional offsets in varying *567amounts to certain tenants for conditions within their individual apartments (Solow v Wellner, 150 Misc 2d 642, mod 154 Misc 2d 737, mod 205 AD2d 339 [1st Dept]). The present appeals concern a posttrial award of sanctions under 22 NYCRR part 130 against appellant Finkelstein, Borah, Schwartz, Altschuler & Goldstein, P. C. (Finkelstein, Borah), landlord’s attorney of record, in the amount of $250 per case, and sanctions against appellant Ray L. LeFlore, landlord’s trial counsel, in the amount of $3,000 per case.


The majority has outlined the relevant facts of this case, indicating that the plaintiff initiated this action to recover damages of $5,000, arising out of defendant’s alleged failure to provide adequate heat, that the plaintiff moved for summary judgment and that the defendant cross-moved for identical relief. The court below denied both motions, noting only that “Issues of fact remain which may only be resolved at trial.” My colleagues suggest that “by denying summary judgment to the defendant corporation, the Court below implicitly recognized the applicability of the [breach of warranty] statute to proprietary tenancies since that was the major item of contention of each party.” While plaintiff in his affidavit submitted in support of his motion for summary judgment indicates he is relying upon the breach of warranty statute, and while defendant in its affidavit submitted in support of its cross motion for summary judgment and in opposition to plaintiff’s motion argues that the breach of warranty of <mask> statute should not be applied to co-operatives, I believe the subtle complexities of the issue of whether section 235-b of the Real Property Law applies to co-operative corporations are such that no implication can be gleaned from the order on *141appeal as to whether Special Term was of the opinion that the statute did or did not apply to co-operative corporations.


More importantly, an examination of the in custodia legis procedure espoused in King reveals its origin is not rooted in application of common law principles. Rather, the recognition of an implied warranty of <mask> marked a change from Missouri's previous application of caveat *288emptor. King , 495 S.W.2d at 69. In recognizing the implied warranty of habitability, Missouri courts acknowledged a shift in the common law from a landlord's unfettered right to rent and possession toward recognition of a bilateral contract in which the tenant's obligation to pay rent is dependent on the landlord's performance of the obligation to provide a habitable dwelling. Id. It is not surprising, therefore, that, in the course of that transition, the court of appeals discussed the in custodia legis procedure, which undoubtedly reserved some remnants of protection for the landlord. But the fact remains such a procedure had no basis in present property law or contract principles.


“[s]ection 390 is a detailed statute, with 13 subdivisions and many more subparts ... It specifies which child care providers shall be licensed and which only registered . . . Social Services Law § 389 (1) imposes criminal liability for willful violations . . . [b]ut there is no statutory provision for governmental tort liability. It is fair to infer that the Legislature considered carefully the best means for enforcing the provisions of Social Services Law § 390, and would have created a private right of action against erring government agencies if it found it wise to do so. This is not a case where the Legislature has simply prohibited or required certain conduct, and left the mechanism of enforcement to the courts (see e.g. Negrin v Norwest Mtge., *443263 AD2d 39, 47-48 [2d Dept 1999]).” (12 NY3d at 200-201.) Turning to another provision of the Social Services Law, article 7 (§ 460 et seq.) is entitled “Residential Care Programs for Adults and Children.” Under this article, no private right of action exists for appointment of a temporary receiver because there is no explicit statutory predicate (Carrier v Salvation Army, 88 NY2d 298 [1996]), but subdivision (2-a) of section 461-c does specifically allow suit by a resident to enforce either the implied warrant of <mask> or an individual’s written admission agreement with a facility (Green v Lakeside Manor Home for Adults, Inc., 101 AD3d 809 [2d Dept 2012]).


We have been presented with no compelling reason which would justify precluding full and fair consideration of the key issue underlying possession in this matter (Martin's intent), especially when Martin filed his unlawful detainer action in unlimited civil jurisdiction. (See Ytuarte v. Superior Court, supra , 129 Cal.App.4th at p. 275, 28 Cal.Rptr.3d 474 ["a court in a limited civil action cannot determine the title to real property" (italics added) ].) " 'Certainly the interest in preserving the summary nature of an action cannot outweigh the interest of doing substantial justice. To hold the preservation of the summary proceeding of paramount importance would be analogous to the "tail wagging the dog." ' " ( Green v. Superior Court, supra, 10 Cal.3d at p. 636, 111 Cal.Rptr. 704, 517 P.2d 1168 [considering whether summary nature of unlawful detainer should foreclose tenant from raising breach of <mask> defense].) The trial court abused its discretion to the extent it relied on the summary nature of unlawful detainer actions to exclude evidence highly probative on the key possession issue. "[W]hile the state does have a significant interest in preserving a speedy repossession remedy, that interest cannot justify the exclusion of matters which are essential to a just resolution of the question of possession ...." ( Ibid . )


The credible evidence considered by this court leads it to the inescapable conclusion that the demised premises, the one-family house located at 437 Atlantic Avenue, Freeport, New York, was deliberately demolished at a critical point in this litigation, to preclude the respondents from having the same inspected in furtherance of their defense and counterclaim relating to the warranty of <mask>.


*413Therefore, upon the theory that “the fact that the tenant had claimed the landlord’s failure to supply services which were a vital and integral part of the leasing arrangement” (72nd Tenants Corp. v Rosen, p 15, col 2, supra), it has also been held that a bare “no counterclaim” provision does not waive the right to interpose the same where rent may be abated for an alleged failure to provide essential services (Horing v Langlieb, NYLJ, July 8, 1974, p 13, col 6 [App Term]; Steinberg v Carreras, 77 Misc 2d 774 [App Term]; Levine v Ehrenberg, NYLJ, June 11, 1973, p 18, col 2 [App Term]). Similarly, the clause may not bar proof on a counterclaim based upon an alleged breach of the warranty of <mask> (Cosmopolitan Assoc. v Ortega, 90 Misc 2d 437, supra).


The difficulty with the reasoning of the Richburg court is that its logical basis harkens to common-law times, when the tenant’s obligation to pay rent was entirely divorced from the landlord’s duty to maintain the premises. As is stated in one treatise: “At one time, a lease was deemed to be the functional equivalent of a conveyance of land rather than a contract, so that the obligation of the tenant to pay rent was independent of the obligation, if any, of the landlord to maintain the premises in tenantable condition. This meant that, absent adverse conditions sufficiently severe as to constitute an actual or constructive eviction, the tenant was limited to whatever remedies were contained in the lease. As a result, such tenants generally could not use the withholding of rent as a weapon to compel the landlord to maintain building services. Although the law has changed little with respect to commercial tenants, the law has changed dramatically with respect to residential tenants. A residential lease is now, to a large extent, deemed to constitute a sale of shelter and services and contains an implied warranty of <mask>.” (7 Warren’s Weed, New York Real Property, Leasing: Rights & Obligations, § 6.03 [3] [a] [4th ed].)


It is under the third branch of the warranty of <mask> — failure of reasonable expectation — that relief must be granted, if it is to be granted at all. A difficulty arises because of the particular facts involving this tenant, who moved into the unit which is the subject of this proceeding while aware of the pendency of the demolition and construction, yet who also resided in the building in another unit in the demolished wing and moved to facilitate the demolition.


*343In Covington v McKeiver (88 Misc 2d 1000) the Appellate Term for the Ninth and Tenth Judicial Districts permitted the maintenance of a counterclaim based upon breach of the warranty of <mask> for moneys paid under the lease (see also, Edgemont Corp. v Audet, 170 Misc 2d 1040 [App Term, 9th & 10th Jud Dists]). This is the position of the Appellate Term, First Department, as well (see, Alp Realty Corp. v Huttick, 160 Misc 2d 76, and cases cited therein). For the reasons that follow, we agree with this position and cases outstanding from this court which may be to the contrary should not be followed (Fisher v Cronin, NYLJ, Feb. 1, 1990, at 29, col 5 [App Term, 2d & 11th Jud Dists]; Fisher/Knickerbocker Co. v Green, NYLJ, May 14, 1992, at 27, col 6 [App Term, 2d & 11th Jud Dists]).


VOA claims that they simply "restored” a facility to <mask>. However, a determination to fund the placement of clients of DMH in a charitably run SRO may be an "action” as delineated above. Nevertheless, we need not (and do not) decide whether there was any "action” here since we find that if there was any "action” it was "Type II action.”


Other cases have addressed the issue of the cumulative effects of a number of what may be termed “minor” lapses. In one case, the court held that the landlord’s action in firing both a full-time superintendent and a full-time handyman, which led to a failure to provide, at various times, heat, hot water, elevator service, security (by failing to repair a broken front door lock), and garbage collection and disposal, amounted to a breach of the implied warranty of <mask>. (111 East 88th Partners v Simon, 106 Misc 2d 693; see, also, Concord Vil. Mgt. Co. v Rubin, 101 Misc 2d 625.)


“[W]here the parties, both represented by counsel, have freely entered into a stipulation of settlement in open court, such stipulation will generally be enforced unless public policy is affronted, i.e., where judicial enforcement of such an agreement would be the approval of a transaction which is inherently vicious, wicked or immoral, and shocking to the prevailing moral sense” (1420 Concourse Corp. v Cruz, 135 AD2d 371, 372 [1987], appeal dismissed 73 NY2d 868 [1989]). “[U]nless public policy is affronted, parties to a civil dispute are free to chart their own litigation course and, in fashioning the basis upon which a particular controversy will be resolved, they ‘ “may stipulate away statutory, and even constitutional rights” ’ ” (id., quoting Mitchell v New York Hosp., 61 NY2d 208, 214 [1984]). Tenants’ contention that the stipulation is void because it purported to modify the statutory warranty of <mask> by requiring written notice, raised for the first time five years after they received the benefits of the stipulation, is unavailing. Tenants’ arguments overlook the fact that the stipulation was the culmination of extensive arm’s length negotiations to settle the latest of many disputes arising out of the failure of tenants — one of whom is an experienced real estate and landlord-tenant attorney — to timely pay maintenance based on dubious habitability claims.


The doctrine of the implied warranty of <mask> has been slow to evolve. As noted in Tonetti v Penati (48 AD2d 25), at common law there was no such warranty and the rule was lessee beware. Courts have recently begun to recognize the existence of such a relief (Amanuensis Ltd. v Brown, 65 Misc 2d 15; Jackson v Rivera, 65 Misc 2d 468; Garcia v Freeland Realty, 63 Misc 2d 937; Mannie Joseph, Inc. v Stewart, 71 Misc 2d 160; Morbeth Realty Corp. v Velez, 73 Misc 2d 996; Kipsborough Realty Corp. v Goldbetter, 81 Misc 2d 1054; Groner v Lakeview Mgt. Corp., 83 Misc 2d 932) and it can be said that this warranty existed even prior to its codification as section 235-b of the Real Property Law.


In light of the testimony given by many of the tenants, and the testimony of their expert witness, concerning the decrease in essential services which occurred in or about November 1979, the award of damages for landlord’s breach of the implied warranty of <mask> was within the permissible range of evaluation and is not disturbed. We do disagree with so much of the outcome below as assessed substantial punitive damages against the landlord in addition to the award of contract damages. There is no hard evidence that the decline in services was linked to some ulterior motive or design, and it appears that the landlord did make some efforts to restore services. Nor is there any indication of rent impairing violations or any showing that landlord was in contempt of outstanding administrative or court orders relating to the maintenance of the building. Accordingly, even assuming that the law of punitive damages may appropriately be extended to habitability cases, we conclude that on the facts here there was not demonstrated that measure of “high moral culpability” or “criminal indifference to civil obligations” (see, Walker v Sheldon, 10 NY2d 401, 405) necessary to sustain such an award.


We do not reach the plaintiffs' contentions concerning those branches of their motion which were for summary judgment on the first and third causes of action, which alleged breach of the proprietary lease and breach of the implied warranty of <mask>, respectively, as those branches of their motion were not addressed by the Supreme Court (see Katz v Katz, 68 AD2d 536, 542-543).


The law is clear that a tenant may defeat an eviction for non-payment of rent, for example, by showing that the owner has breached the warranty of <mask>. (See Civ. Code, § 1942.4, subd. (a)(1) ; see also Code Civ. Proc., § 1174.2, subd. (a).) A tenant, however, may not defeat an Ellis Act eviction by showing that her apartment is untenantable. (Id .) From the fact that an owner seeking to withdraw rental property under the Ellis Act has no obligation to maintain the tenantability of the premises for purposes of a claim of possession it does not follow that an owner seeking to remove a unit from the market is free to take any and all action against a tenant or their leasehold. By section 7060.4, subdivision (b)(1), the Legislature required that a withdrawing owner seeking to evict an elderly or disabled tenant under the Act must continue the tenancy on the terms and conditions prevailing at the time of notice and, by section 7060.6, the Legislature instructed that an aggrieved tenant "may assert by way of defense that the owner has not complied with the applicable provisions of this chapter," such provisions including the no-change mandate. In the Ellis Act, the Legislature essentially drew a "do no harm" line: For purposes of possession rights under the Act, an owner withdrawing a unit is relieved of affirmative repair responsibilities, but also must refrain from taking affirmative steps to reduce an elderly or disabled tenant's leasehold during the notice period. These straightforward directives are internally consistent and wholly reasonable.


Landlord’s agent testified that he did not intend to reinstate tenant’s tenancy by accepting the $656.40 from her on November 30, 1979; but, tenant disagreed, testifying that the agent promised her that by her payment she was back in good standing; and, that both agreed that she would pay the balance of $293.40 to cover her entire indebtedness through November, 1979, when the agent completed all of the repairs on the listing he wrote and signed; and, that thereafter an adjustment would be worked out to compensate tenant for the deprivations she sustained because of landlord’s breach of the *644warranty of <mask>. She further testified that the agent agreed to forego legal fees, and this is supported by the agent’s omission of any amount for legal fees in his calculation of the total indebtedness owed through November, 1979. Tenant testified that had she been aware that landlord intended to take her $656.40 and then break his promises and then evict her anyhow, she would not have given the money to the agent but would have returned it to the City of New York and moved from the apartment. Tenant’s version is supported by both the rent receipt and the repair listing, written and signed by landlord’s agent. There is no independent support for the agent’s version. This court believes the testimony of the tenant and disbelieves the agent’s version. An example of the poor credibility of landlord’s agent was his testimony at the hearing that he could not keep his written promise of November 30, 1979 to remedy the leaks in tenant’s apartment because of his inability to gain access to the apartment above tenant’s. That he could not gain access to the overhead apartment during the four- and one-half month intervening period is simply not credible.


Petitioners’ contention that the absence of a pass-along renders the regulation arbitrary and capricious is inconsistent with the specific legislative intent expressed in Multiple Dwelling Law § 280, the public policy of this State which culminated in the legislative adoption of the warranty of <mask> (Real Property Law § 235-b) and national policy (see, Memphis Light, Gas & Water Div. v Craft, 436 US 1, 18 [“Utility service is a necessity of modern life; indeed, the discontinuance of water or heating for even short periods of time may threaten health and safety”]).


I vacated the default as I found respondent’s failure to appear excusable. Respondent came to court on the return date of the motion but was confused as to which courtroom to appear in. She waited in room 325, the courtroom where she originally appeared on the date of the inquest. Respondent establishes as well a meritorious defense based on an alleged breach of the warranty of <mask>. Therefore, I will now reconsider landlord’s motion on its merits.


The doctrine of implied warranty of <mask> has not been squarely passed upon by the appellate courts of this State, although it has won increasing approval among Trial Judges faced with the day by day need to achieve decent and fair results. However, a firm basis for expecting its ultimate acceptance in this State may be found in the unmistakable trend of judicial opinion throughout the country, the broad approval it has received from informed scholarly opinion, and the obvious compelling need to adapt the law to current realities. Significantly, the underlying principles of the doctrine have been fully accepted in the proposed Uniform Residential Landlord and Tenant Law, which represents the careful and painstaking work of distinguished scholars and specialists throughout the country.


The only real issue here is whether Good Luck should be liable for the unsanitary conditions about which Ms. Shlivko testified, and which were not disputed. There is no evidence that Good Luck knew or had reason to know of the unsanitary conditions or even of the possibility; and, therefore, to the extent that Good Luck’s duty is only one of reasonable care, it might not be liable. If, however, this court follows the lead of the Pennsylvania court in Tuohey v Trans Natl. Travel Inc. (47 Pa D & C 3d 250 [1987]), and finds that there was a contract between Ms. Shlivko and Good Luck that included an implied warranty of <mask>, Good Luck might well be liable. Under New York law, the warranty of habitability that is implied in all residential leases is breached by vermin infestation. (See Kekllas v Saddy, 88 Misc 2d 1042 [Nassau Dist Ct 1976]; Mayers v Kugelman, 81 Misc 2d 998 [Suffolk Dist Ct 1975].)


“Warranty of <mask> “1. In every written or oral lease or rental agreement for residential premises the landlord or lessor shall be deemed to covenant and warrant that the premises so leased or rented and all areas used in connection therewith in common with other tenants or residents are fit for human habitation and for the uses reasonably intended by the parties and . . . the occupants of such premises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety. When any such condition has been caused *222by the misconduct of the tenant or lessee or persons under his direction or control, it shall not constitute a breach of such covenants and warranties” (id.). Case law has established that NYCHA is subject to the warranty of habitability of Real Property Law § 235-b (City of New York v Rodriguez, 117 Misc 2d 986 [1983]). Plaintiffs allege that defendant NYCHA has breached this warranty of habitability by failing to eradicate the bedbug condition in apartment 1C. Defendant alleges that there was no breach of the warranty of habitability either because it took all reasonable steps to eradicate the bedbug infestation or that the condition was caused by one or more of the plaintiffs.


While bedbugs feed on their prey (humans) by penetrating the skin, leaving behind welts and red marks, plaintiffs have failed to raise a triable issue of fact whether bedbugs are anything more than a nuisance. According to the New York City Department of Health and Mental Hygiene “Bed Bug Fact Sheet,” bedbugs do not spread disease, (http://www.nyc.gov/ html/doh/html/vector/vector-faq 1. shtml.) Moreover, the New York City Health Department recommends that anyone with bedbugs hire a pest control professional, and the hotel had a service contract with an exterminator. (Id.) Therefore, plaintiffs have not only failed to raise a triable issue of fact whether the presence of bedbugs violates any applicable health code, ordinance or statute, they have also failed to raise triable issues of fact whether the defendants acted with such reckless abandon *809that punitive damages are available. (Compare Mathias v Accor Economy Lodging, Inc., supra [health code violations]; Ludlow Props., LLC v Young, supra [breach of warranty of <mask>; tenant entitled to rent abatement for constructive eviction].) There being no factual allegations to support plaintiffs’ punitive damages claim, it is hereby severed and dismissed, as a matter of law.


Defendants also checked the boxes asserting: the existence of a rebuttable presumption that the lessor breached the warranty of <mask> because the *61conditions existed and were not abated for 60 days after lessor was given notice pursuant to Civil Code section 1942.3 ; the landlord was demanding rent in violation of Civil Code section 1942.4 because the apartment unit was uninhabitable and the conditions existed for at least 35 days after a public agency gave the landlord notice of the conditions; and "[a] substandard order was issued by a governmental agency with respect to the subject property."


Although respondents argue that to “establish a standard for enforcement of the warranty of <mask> that lumps loft tenants in a category different from that of all *746other residential tenants would be a direct contravention of the statute”, the court agrees with the foregoing dicta. This case clearly illustrates not only a need for different criteria in loft cases, but even further, different rules depending on the nature of the space rented. Here, where raw space was leased, the factors to be considered in determining whether to grant an abatement are different from those where a loft was rented with residential appurtenances. If a toilet installed by the tenant doesn’t work (assuming the fault not due to the plumbing outside the unit), there would be no reason for an abatement, while the opposite would be true if the premises were rented with such facility. (See Lomreal Realty Corp. v Deutschman, NYLJ, Feb. 9, 1981, p 12, col 5 [App Term, 1st Dept].)


Other than the engineering expert, no witness testified at trial for landlord, who inexplicably saw fit not to offer the testimony of any principal, agent or employee to refute any of tenant’s contentions. Nor did landlord offer any evidence of any attempt to remedy the lack of water after receiving notice thereof. If this court were to accept landlord’s contention that *614it was not obligated to do anything to remedy the lack of water because of excessive use of local fire hydrants, it would amount (as tenant’s counsel so aptly put it) to the grant of an immunity which would undermine the objectives of the warranty of <mask> statute.


Defendants move for summary judgment dismissing the complaint upon the grounds, inter alia, caveat emptor, merger, no breach of warranty of <mask> is implied on sale of a previously lived-in home, lack of confidential relationship, absence of mutual mistake and, factually, that no chlordane problem exists as evidenced by the Westchester County Department of Health report and an expert’s report and affidavit submitted in support of the motion. Plaintiffs argue that triable issues exist with respect to defendants’ knowledge that requires discovery; also because of differing opinions on the extent of the chlordane problem; and by reason of paragraph 11 (a) of the contract which survived delivery of the deed.


There is a distinction, however, between the process reviewed in Bell (supra) and the statutory procedures involved here. In Bell, there was absolutely no opportunity to assert a viable defense unless a bond was posted. In contrast, under RPAPL 745 (2) a tenant may raise a warranty of <mask> defense and receive a prompt hearing on the issue. It is only in seeking to adjourn the trial is a deposit required of postpetition rent, a situation which the Supreme Court in Lindsey (405 US 56, supra) held was appropriate.


The jury waiver is valid as against all claims arising out of the leasehold, save those items proscribed by statute, specifically actions for personal injury and property damages (Real Property Law, § 259-c). While the statute codified common and case law with regard to the warranty of <mask>, it did not specifically prohibit the implementation of jury waiver provisions in trials dealing with breach of warranty of habitability claims. Further, although the statute prohibits waiver of the right to bring such an action, it does not negate the fact that the warranty arises out of and by reason of the leasehold between the parties hereto. The jury waiver may therefore be invoked regarding a counterclaim for the breach of warranty of habitability.


The result reached above on the basis of the lease provisions would be independently required under the developing doctrine of implied warranty of <mask>, at least with regard to the period not connected with the repair of the boiler. The Multiple Dwelling Law, expressing the public policy of the State, mandates that landlords must provide hot water throughout the year (§ 75) and heat during the appropriate time of the year (§ 79).


Homeowners state in their brief that, "in the case at bar, there was no evidence that [Builder] foresaw any water issues." But the absence of such evidence at trial does not automatically establish a right by Homeowners to equitable garnishment here because their claim in the warranty trial was not based on negligence or unforeseeability; it was based instead on a breach of implied warranty of <mask>. And "[i]n order to recover for breach of implied warranty of habitability in Missouri, negligence, knowledge or fault on the part of the builder-vendor need not be shown." Allison v. Home Sav. Ass'n of Kansas City , 643 S.W.2d 847, 851 (Mo. App. W.D. 1982). Accordingly, the verdict director in the warranty trial did not require the jury to determine whether Builder had negligently caused the water problem or had not foreseen the water problem. In fact, Homeowners maintained at the warranty trial that "the problem's cause remained unknown[.]" Davies , 410 S.W.3d at 304.


The warranty of <mask>, unlike other clauses in the standard form lease has been isolated by the Legislature as a nonwaivable owner obligation, designed to ensure habitable housing and the implementation of public policy. The tenant’s remedies under sections 743 and 755 of the Real Property Actions and Proceedings Law to assert a breach of the warranty as an affirmative defense or counterclaim remain unaffected. (It is noted the tenant may affirmatively seek rescission of a lease on the ground of a material breach including that of warranty of habitability.)


. It has long been clear that the existence of minimum standards, with no enforcement except by State and city officials is entirely inadequate to insure that those *800standards are met. (See, e.g., Bar Housing Corp. v Calhoun, NYLJ, June 16, 1982, p 13, col 2.) This situation was responsible for the creation of the Housing Court (see, e.g., the legislative history of CCA, § 110, 1972, ch 982; § 1, subd [a]), the statutory warranty of <mask> discussed below (see, e.g., Park West Mgt. Corp. v Mitchell, 47 NY2d 316, cert den 444 US 992) and, presumably, section 230 of the Real Property Law.


I conclude here, as I did in Amanuensis (supra), that the Davar opinion is most reasonably construed as intended to apply to the kind of situation before that court — one in which the landlord acted in good faith; the violation did not significantly impair <mask> and was not emergency in character; and in which it might reasonably be anticipated that enforcement procedures would be effective.


The modern concept of a lease, as viewed both by the courts of this State (Goldner v Doknovitch, 88 Misc 2d 88; West, Weir & Bartel v Carter Paint Co., 29 AD2d 526; 25 NY2d 535; Tonetti v Penati, 48 AD2d 25; Barasch v Goldbetter, NYLJ, April 15, 1975, p 17, col 3), and the Legislature (Real Property Law, §§ 226-b, 235-b, 235-c, enacted in 1975 and 1976) is that a lease is a contract and that the contract principle of interdependency of covenants should be applied. Further, recognition has been given, that the landlord and tenant are not in equal bargaining positions. Both the courts and the Legislature have applied these principles in matters dealing with (1) the right *203to sublet; (2) the warranty of <mask> and (3) in striking out unconscionable clauses. The only major area not yet dealt with by the appellate courts and Legislature of this State is this question of "Mitigation of Damages”. A number of other States have responded judicially. American Jurisprudence (Second Series, vol 49, Landlord and Tenant, § 621, p 594) states: "On the other hand, there is direct authority, as well as dicta, which takes the view, respecting the duty of the landlord in this regard, that it is the duty of a landlord on wrongful abandonment of the premises by his tenant, to make reasonable efforts to reduce the damages from the breach by reletting the premises to a new tenant.” (Benson v Iowa Bake-Rite Co., 207 Iowa 410; Marmont v Axe, 135 Kan 368; Weinstein v Griffin, 241 NC 161; Wright v Baumann, 239 Ore 410; Patton v Milwaukee Commercial Bank, 222 Wis, 167.) "According to considerable authority, also, if the landlord reenters in pursuance of a forfeiture or under a provision of the lease permitting him to do so after his tenant has abandoned the premises, he must then use diligence in seeking a new tenant in order to lessen the damages.” (International Trust Co. v Weeks, 203 US 364; Bradbury v Higginson, 162 Cal 602; Kanter v Safran, 68 So 2d 553 [Fla]; Jordan v Nickell 253 SW2d 237 [Ky]; Crow v Kaupp, 50 SW2d 995 [Mo]; Carey v Hejke, 119 NJL 594; Church Co. v Martinez, 204 SW 486 [Tex]; Brown v Hayes, 92 Wash 300.)


The novel issue to be determined herein is whether secondhand smoke emanating from a neighbor gives rise to a breach of the implied warranty of <mask> and a constructive eviction under the realities of modern urban dwelling. Most urban dwelling in New York City comprises “vertical living” in high-rise apartment buildings with possibly multiple neighbors in all directions. With multiple neighbors living beside each other comes basic duties and responsibilities. There is a duty to protect each other’s right to privacy and a responsibility not to invade a neighbor’s privacy. The unwanted invasion of privacy comes in many guises such as noise, smells, odors, fumes, dust, water and even secondhand smoke.


The implied warranty of <mask> is breached if "in the eyes of a reasonable person, defects in the dwelling deprive the tenant of those essential functions which a residence is expected to provide” (Park W. Mgt. Corp. v Mitchell, 47 NY2d 316, 328 [1979]). Leaks and damaged plaster have long been recognized as falling under the warranty (Century Apts. v Yalkowsky, 106 Misc 2d 762 [Civ Ct, NY County 1980]).


Adam Seiden, J. Claimant brought this proceeding to recover $3,000 for alleged breach of the warranty of <mask> in regard to an apartment located at 332 Highland Avenue, Mount Vernon, New York. On September 1, 1994 claimant moved into a third floor apartment at said address. Claimant paid $700 per month pursuant to an oral agreement. The parties disagree as to *342whether the arrangement was month to month or for a period of time. The issue is not important as the warranty of habitability is applicable to the relationship in either event. (See, Real Property Law § 235-b [1].)


This holding does not conflict with the decision reached in Frisch v Bellmarc Mgt. (supra). There the Appellate Division concluded that the defense of the statutory warranty of <mask> for leased premises did not apply to condominiums; condominium is a fee ownership interest rather than leasehold. In the case at bar any defective conditions within the unit must be remedied by the unit owner since they are presumed to be within petitioner’s control. However, it is uncontroverted that there is a violation of record involving penetration of water into petitioner’s apartment through common areas of this multiple dwelling which is within the sole control of the respondent and/or its delegees. It is undisputed that petitioner has no control over the common areas/elements that would enable him to correct the violations found by the housing inspector. Condominium units in multiple dwellings are by nature of their proximity to each other and common areas, and their shared services, interconnected and interrelated to such a degree that there is no reasonable way to separate each unit from the multiple dwelling as a whole.


“Naturally, it is a patent impossibility to attempt to document every instance in which the warranty of <mask> could be breached. Each case must, of course, turn on its own peculiar facts . . . “Problematical in these cases is the method of ascertaining damages occasioned by the landlord’s breach . . . Inasmuch as the duty of the tenant to pay rent is coextensive with the landlord’s duty to maintain the premises in habitable condition, the *622proper measure of damages for breach of the warranty is the difference between the fair market value of the premises if they had been as warranted, as measured by the rent reserved under the lease, and the value of the premises during the period of the breach. The award may take the form of a sum of money awarded the tenant in a plenary action or a percentage reduction of the contracted-for rent as a setoff in summary nonpayment proceeding . . . “In ascertaining damages, the finder of fact must weigh the severity of the violation and duration of the conditions giving rise to the breach as well as the effectiveness of steps taken by the landlord to abate those conditions.” (Id. at 327-329 [emphasis added and citations omitted].) As set forth above, section 235-b only applies to the parties to the lease. Although the warranty of habitability applies to all leases (including oral leases), this warranty, like all warranties, is merely part of the contract itself. (170 W. 85th St. Hous. Dev. Fund Corp. v Marks, 40 Misc 3d 1237[A], 2013 NY Slip Op 51332[U], *5 [Civ Ct, NY County 2013] [“As the warranty of habitability sounds in breach of contract ... (a nonparty) does not have standing to seek an abatement predicated on the breach of the warranty of habitability”].) Ergo, the warranty of habitability does not bind nonparties, such as the landlord’s agents. Plaintiffs argue that certain cases suggest that the word “landlord” in section 235-b must be read broadly to include all those with a nexus to the lease, such as managing agents. However, the cases cited by plaintiffs concern public administrators (governed by RPAPL art 7-A), not private third-party management companies. (See e.g. Department of Hous. Preserv. & Dev. of City of N.Y. v Sartor, 109 AD2d 665 [1st Dept 1985].) Of course, owning the leased premises is not a prerequisite to being a “landlord” for the purposes of section 235-b (e.g. sublessors are equally obligated to keep the premises habitable), but being a contracting party is. Where, as here, the managing agent defendants are not parties to plaintiffs’ leases, they are not liable for monetary damages for breaches of the warranty of habitability. A breach of such warranty is a mere breach of contract, requiring privity. The section 235-b claim, therefore, is dismissed as against the non-landlord defendants: Ogden, Solil, and Goldman. Similarly, plaintiffs cannot amend to assert a claim against Matel Realty, LLC, or any other managing agent.


As to interest: CPLR 5001 (a) would appear to leave the issue to the court’s discretion. Although the rent due for which the judgment was issued would have been due December 1, 1987 and therefore interest could be computable beginning that date, we must also remember that a breach of warranty of <mask> occurred in October and November, for which petitioner could arguably owe respondent some amount of "interest”. Respondent of course tendered payment of the principal in court. I made no award of "interest” in my verbal decision and I make none now.


In this residential nonpayment summary proceeding the novel issue presented at trial was whether petitioner, a proprietary lessor, violated its statutory obligation to respondent, a proprietary lessee, and breached the warranty of <mask> provided in section 235-b of the Real Property Law by permitting a commercial tenant of the contiguous lower floor (street level) of the building to erect and maintain an illuminated white awning directly below and outside of respondent’s bedroom window. This court holds that under the facts presented at trial no breach of the warranty of habitability occurred as a result of the erection and maintenance of the illuminated awning.


In 205 W. End Ave. Owners Corp. v Adler (NYLJ, Nov. 2, 1990, at 21, col 4) and 61 E. 72nd St. Corp. v Zimberg (161 AD2d 542), the courts held that in the case of a residential tenancy, a contractual provision that permits the landlord to terminate the lease based on nonpayment of rent (other than in chronic nonpayment situations) is void because it violates public policy. In Adler, Appellate Term reasoned that the enforcement of such a provision interferes with a tenant’s opportunity to cure rent defaults by payment of the amount of rent ultimately found due upon an adverse judgment and frustrates a tenant’s right to litigate <mask> defenses. Moreover, Appellate Term stated that a landlord should not be permitted to prosecute an ordinary nonpayment case in the guise of a holdover and thereby precipitate an irrevocable forfeiture.* (205 W. End Ave. Owners Corp. v Adler, supra.)


Although controversial and, as yet, not directly addressed by major appellate scrutiny, it seems manifest that section 235-b should be reviewed in contract theory, not strict tort liability. If respondent can establish that petitioner has indeed breached his statutory warranty of <mask>, respondent would be entitled to a rent abatement or compensatory damage award due to the reduced fair market value of the leased premises. However, any personal injury action would be based upon the traditional tort theory of negligence; respondent cannot sue in strict liability using as her cause of action breach of the section 235-b warranty.


The court has also taken into consideration the observations made by the two Judges in the Majen and the East Haven cases {supra) concerning the critical housing shortage prevailing in the city. It was urged in both cases that the rule requiring a family to abandon the demised premises should be relaxed because of the scarcity of available decent housing. It would be beyond the jurisdiction and scope of this court to assume the role of the Legislature and to extend the already existing law concerning the requirement that demised premises be abandoned in cases of <mask>.


“But alterations to leased premises, made with the consent of the tenant, do not amount to an eviction, no matter how extensive or the degree of interference with the tenant’s occupancy (see Two Rector St. Corp. v Bein, 226 App Div 73 [1929]). Here, the entry for making repairs was made pursuant to a right reserved in the proprietary lease, to which the tenants, by signing the lease, consented (see Winston Churchill Owners Corp. v Churchill Operating Corp., 193 AD2d 396 [1993]).” In the case at bar, the respondent continued in possession of the office space and continued to use the on-site parking provided. Thus, there is no <mask>. A case in point is Matter of Scolamiero v Cincotta (128 AD2d 224 [3d Dept 1987]), wherein the tenant failed to vacate the leased premises and renewed the lease. The Court held there was no constructive eviction regarding the leasing of the parking space to another tenant. The tenant’s claims were restricted to the amount of damages suffered in the diminution of use of the parking spaces:


In Boreel v. Lawton (90 N. Y., 293), it is said that there cannot be a <mask> without abandonment of possession. That remark should be construed in connection with the case then before the court which was was an action by a landlord against his tenant for rent, and the defendant, admitting the continuance of the tenancy during the time for which rent was demanded, alleged certain acts done or permitted by the landlord to the tenant’s damage which he set up as a counter-claim. It was held that there was not such an eviction as would furnish a basis for an action on the covenant for quiet enjoyment, and that although the defendant may have had a cause of action, it was not the subject of a counterclaim. Several other cases are cited arising out of leases, but none question the right of a tenant to attorn to a paramount title and thereby defeat an action for rent subsequently accruing. (Simers v. Saltus, 3 Den., 214; Wood’s Land, and Ten., 807, and cases cited in note 1.)


To further illustrate that <mask> is established only in cases where the intolerable condition is neither caused nor can be remedied by the tenant, reference is made to the case of Madden v. Bullock (supra) in which the loathsome stench of dead and putrescent rats in the walls and under the floors, which was made worse by the use of chloride of lime, was held to be a sufficient cause for abandonment of the premises, upon the ground that the “ defendant [tenant] was powerless to abate this peril to health.” And in Barnard Realty Co. v. Bonwit (155 App. Div. 182), in which a “ disturbance caused by the nightly meetings and performances of rats in the walls and ceilings, coupled with a most offensive odor which increased until the place became untenantable,” a constructive eviction was likewise held to have taken place.


Petitioner’s motion to dismiss the third affirmative defense, that rent-impairing conditions render the premises untenable and the ninth affirmative defense that petitioner’s actions constituted an actual and/or <mask>, is granted. Article 52 of the net lease of the entire building known as 1833 First Avenue provides that "[i]t is understood and agreed that is a 'Net Lease’ ” and that "all costs and expenses relating to the demised premises and in connection with the operation and maintenance of same shall be paid for by the Tenant.” Article 39 of the net lease further provides that respondent is obligated to maintain the subject building "at its sole cost and expense.”


With regard to the breach of the covenant of quiet enjoyment claim, the court agreed with the parties that it does not apply to a commercial lease. The court declined to treat the claim as one for <mask> for two reasons: first, there was no lease; and second, by December 2011 or January 2012, Salima was not lawfully on the premises.


Defendant’s counterclaim seeks $25,000 in damages for the alleged resulting uninhabitability” and <mask> (answer ¶ 19). Whether analyzed in a light most favorable to the pleader as the court must on a motion to dismiss (CPLR 3211 [a] [7]), or as a motion for summary judgment (CPLR 3212) as urged by defendant himself, the counterclaim does not plead, and defendant’s accompanying affidavits do not set forth, a valid claim. (See, Rovello v Orofino Realty Co., 40 NY2d 633.) Defendant’s allegations about the neighbor’s acts, even if true, are insufficient as a matter of law. Neither the pleading nor the proof demonstrates that the neighbor’s acts rendered the leased premises unfit for human habitation, or that they created conditions that were dangerous to life, health or safety or that they denied defendant any essential functions. (See, Solow v Wellner, 86 NY2d 582.) By definition, the warranty of habitability does not extend to aesthetics or inconveniences which do not render premises dangerous or unsafe (Park W. Mgt. Corp. v Mitchell, supra, at 328) even if unexpected in a luxury building. (See, Solow v Wellner, supra.) Disinclination to catch an occasional glimpse of a neighbor under the circumstances set forth here does not constitute breach of the warranty of habitability.4 Moreover, the lease clearly prohibited the interposition of counterclaims in any action between the parties related directly or indirectly to the lease. Accordingly, the counterclaim is dismissed.


Since respondent continues to use the parking provided, even if the usage is greatly diminished, claims of <mask> will fail. (See Arpino v Cicciaro, 38 Misc 3d 129[A], 2012 NY Slip Op 52392[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]; 737 Park Ave. Acquisitions, LLC v Eastside Comprehensive Med. Servs., LLC, 44 Misc 3d 1207[A], 2014 NY Slip Op 51048[U] [Civ Ct, NY County 2014].)


Appellant does however cite Charalambous v. Jean Lafitte Corp. , which we find helpful here. In Jean , the tenants had a commercial lease whereby they ran a restaurant. Id. at 523. The tenants alleged that when the landlord's agent became disturbed by the noise made by a musical group performing at the restaurant, the agent cut off the restaurant's utilities without warning, resulting in substantial food spoilage and loss of restaurant business. Id. The tenants further alleged that the landlord and the agent subsequently changed the locks on the restaurant floors eleven days later. Id. After outlining the elements for a <mask>, this Court found that the elements were satisfied "by the undisputed testimony regarding defendants changing the locks and effectively preventing the [tenants] from carrying on their business after [the lockout date]. Jean , 652 S.W.2d at 526. Importantly, this Court did not rely on the date the utilities were cut.


First, the whole thrust of later developments discloses <mask> to be an illusory protection for the ordinary residential tenant, and establishes that code enforcement is ineffective to achieve broad compliance with the law. (See Gribetz and Grad, Housing Code Enforcement: Sanctions and Remedies, 66 Col. L. Rev. 1254; Note, Enforcement of Municipal Housing Codes, 78 Harv. L. Rev. 801.)


Appeal No. 47. The landlord’s affirmative case was admitted. There was no <mask> because the tenant did not quit the premises. There was no partial eviction because there was no deprivation of a substantial portion of the demised premises. The counterclaim for damages to tenant’s property is inadequately pleaded and the instructions to the jury did not make this phase of the case clear and were so bound up with issues that should not have been presented at all that the findings of the jury cannot be • considered as a determination of the facts. The counterclaim is dismissed without prejudice to a separate action for this relief or to pleading it as a counterclaim in the second action between the parties.


After joinder of issue, TCI moved for summary judgment on both causes of action. Modell cross-moved to dismiss the complaint or for summary judgment dismissing the same or, alternatively, for leave to file an amended answer. Modell’s motion to dismiss was based on its alleged surrender of the demised space to the landlord as a result of the landlord’s purported breach of the covenant of quiet enjoyment. Specifically, Modell claimed that its occupancy of the demised premises was plagued from the onset by a " 'dirt migration *216problem’ ”, that is, a " 'film-like dust’ ”, with a high iron content, which seeped through a faultily constructed premises wall abutting an adjoining subway station and tracks. Modell feared that prolonged exposure to this " 'steel dust’ ” would adversely affect the health and well-being of its customers and employees. In view of the "actual and/or constructive eviction”, Modell argued, it was relieved of its obligation under the April 25, 1986 agreement to make the monthly assignment payments to TCI. In moving to amend its answer, Modell sought to interpose counterclaims alleging actual and <mask>, breach of the covenant of quiet enjoyment, lost profits, breach of contract, negligence and seeking, inter alia, damages, rescission and reformation. Additionally, Modell sought to commence a third-party action against the landlord.


Nevertheless, I am unable to conclude that the departure of the defendant and his family from the apartment at the end of July, 1966 constituted their <mask> from the entire premises. The evidence clearly discloses that the terrace had become unusable no later than the early spring of 1965, and quite possibly earlier. The law is clear that the abandonment must occur with reasonable promptness after the conditions justifying it have developed. (See 1 Basch, Landlord and Tenant, § 877, and cases cited.)


Under the ancient law, only the actual eviction of the tenant by the landlord, and not <mask>, was recognized as a defense (Hunt v. Cope, 1 Cowp. 242). The strictures of this principle have been eroded through the succeeding years; and our courts did not respect the English rule that neither fire, flood, nor violence destroyed the obligation to pay rent (3 Kent’s Comm. [14th ed.], 460). As Chancellor Walworth early said, in Gates & Colvin v. Green (4 Paige Ch. 355, 357): “ It appears to be a principle of natural law, that a tenant who rents a house or other tenement for a short period, and with a view to no other benefit except that which may be derived from its actual use, should not be compelled to pay rent any longer than the tenement is capable of being used.” (See, also, Van Voorhis, J., in Schantz v. American Auto Supply Co., 178 Misc. 909.) Through the passage of time, the assault on the common-law doctrine has continued (1) through the acceptance of the defense of constructive eviction on behalf of the tenant where the landlord, by the commission of acts, or the sufferance of a condition, has interfered with the tenant’s enjoyment of the premises (Haydon Co. v. Kehoe, 177 App. Div. 734; Park Ave. M. E. Church v. Barrett, 30 N. Y. S. 2d 667, affd. 264 App. Div. 879); (2) through the construction by the courts that all leases have an implied covenant of quiet enjoyment (Fifth Ave. Bldg. Co. v. Kernochan, 221 N. Y. 370) and (3) through the enactment of statutory relief (L. 1860, ch. 345, now Real Property Law, § 227; cf. Meserole v. Hoyt, 161 N. Y. 59; Butler v. Kidder, 87 N. Y. 98).


This is all that I understand to have been decided by that case, though it has been supposed to have gone much further. Thus Savage, C. J., in Lewis v. Payne (4 Wend. 428), said, “ In Dyett v Pendleton, it seems to have been held that any obstruction, by the landlord, to the beneficial enjoyment of the demised premises, or a diminution of the consideration of the contract, by the act of the landlord,' amounts to a <mask>.” The only foundation for this opinion is to be found in one of the reasons assigned by Senator Spencer, who delivered an opinion for reversal, to show that actual entry was not essential to an eviction.


On appeal, tenant contends, among other things, that the Civil Court committed reversible error by directing it to pay landlord one month’s use and occupancy, since it had interposed the affirmative defense of partial and/or <mask>, and RPAPL 745 (2) (a) (ii) provides that a tenant cannot be ordered to pay use and occupancy if a partial or constructive eviction defense is interposed. Landlord contends that the Civil Court providently exercised its discretion in requiring tenant to pay use and occupancy as a condition of a further adjournment; that the court had the inherent power to strike tenant’s pleading based on tenant’s failure to pay the use and occupancy; and, in any event, that the order was proper pursuant to RPAPL 745 (2).


Kathy J. King, J. Petitioner moves by order to show cause to be restored to possession based on an illegal lockout and <mask> of the premises located at 124 Avenue J, Basement and Atrium, Brooklyn, New York (hereinafter the subject premises). Petitioner also seeks treble damages pursuant to RPAPL 853 and attorney fees. Respondent submitted an answer and notice of appearance opposing the motion on the basis that no permission had been given to utilize the basement of the subject premises, thereby resulting in his right to regain possession. While respondent appears in the action by an attorney, the court notes that an answer is an improper method for opposing the relief requested in the petition. In accordance with CPLR 2214, respondent should have properly submitted an affidavit by an officer of the corporation with knowledge of the facts and circumstances. Notwithstanding this procedural deficiency, the court held a hearing on March 28 and April 2, 2008 on the issue of whether the petitioner had a right to use the basement.


This issue necessitated testimony focused primarily on proving that the landlord’s willful act in installing inferior quality interlocking tiles on the play roof curtailed defendant’s use and enjoyment of the area, which constituted a partial eviction, actual or constructive (Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77). It was not alleged that plaintiff physically ousted or excluded defendant, a necessary element in an actual eviction (Jackson v Paterno, 58 Misc 201, 204, affd 128 App Div 474; Meerbaum v Crepes D’Asie, 81 Misc 2d 842, 845), therefore, only <mask> remains open as a viable approach.


Defendant’s claim that there was a <mask> because of the landlord’s failure to maintain sufficient elevator service is untenable. By remaining in possession until actual eviction by summary proceedings, defendant waived her right to plead constructive eviction (Ashton Holding Co. v. Ross, 98 Misc. 586 ; Cable v. Bonnell, 9 Misc. 154 ; Cornwell v. Sanford, 222 N. Y. 248). Constructive eviction, therefore, is no defense (79th & 3d Realty Corp. v. Weiner, 27 N. Y. S. 2d 693).


*401The question arises, do the facts in this case constitute an eviction, and if so is it a case of actual eviction, or constructive eviction? From time to time throughout the year there has been a repetition of cases involving the failure of the landlord to supply water, electricity, plumbing facilities, and the like. The tenants have repeatedly complained that such conduct on the part of the landlord results in a substantial deprivation of the beneficial use of the premises so as to amount to an eviction. The courts have generally held that in a case where the facts justify, a <mask> results, rather than an actual eviction. The Court of Appeals in Tallman v. Murphy (120 N. Y. 345, 352) has clearly set forth the law applicable to these cases as follows: ‘1 The heating of the apartments, the supply of water, all sanitary arrangements and many other things essential to the proper enjoyment of the apartments in the building by the tenants thereof, are regulated and controlled by the landlord, and he owes a duty to the tenant to see that all such matters and appliances are kept in proper order, and if he persistently neglects them, and, by reason of such neglect, the tenant is deprived of heat or hot water, or his apartments are filled with gas or foul odors from the same, and the apartments become unfit for occupancy, the tenant is deprived of the beneficial enjoyment thereof, and the consideration for which he agrees to pay rent fails and there is a constructive eviction.” The courts have accordingly held in similar circumstances that a constructive eviction results from the acts or the omissions of the landlord. (Cf. Sully v. Schmitt, 147 N. Y. 248 [failure of the landlord to repair open sewer under leased premises]; Edgerton v. Page, 20 N. Y. 281 [defective waste pipes]; November v. Wilson, 49 Misc. 533 [dampness, leakage of water, defective management of boilers and other machinery]; Krausi v. Fife, 120 App. Div. 490 [defective plumbing causing upflow of sewer gas]; O’Gorman v. Harby, 18 Misc. 228 [defects in boiler, insufficient heat due to stoppage of steam]; Self Serv. Furniture Fair v. 450 Realty Corp., 114 N. Y. S. 2d 774 [defective piping, water and disposal facilities causing water flow].)


Certainly no basis exists for allowing the defense in commercial tenancies which include residential use, and not in ordinary commercial tenancies (see, 114 Fifth Ave. Assocs. v Satnet Inc., NYLJ, Aug. 14, 1989, at 25, col 6 [Civ Ct, NY County]). And indeed, nothing in Minjak (supra) would indicate such an intent by the Appellate Division. The court’s reasoning is based on the need to provide relief where the wrongdoing of the landlord has necessitated an abandonment of some portion of the premises. No mention is made of the residential nature of the tenancy as an essential aspect of the court’s holding. In fact, though Minjak deals with a situation including both commercial and residential aspects, the portion of the premises which were abandoned in that case was the music studio — not the residential portion of the loft. In addition, references to Mr. Page’s injury "in the prosecution of his business” in Edgerton v Page (supra, at 282), on which the Minjak court leans, would seem to indicate a commercial tenancy there. While the court in Edgerton did not find that a partial <mask> had occurred, that finding was based entirely on the fact that the defendant had never abandoned any part of the premises. The underlying implication that had there been an abandonment of some portion of the premises the court would have found a partial constructive eviction, is quite clear.


The landlord argues that the principle of <mask> while recognized in section 1446-a is disregarded in the statute under consideration and states “ The principle that a tenant who has the beneficial enjoyment of property, must pay a rent even if there are conditions which might constitute a constructive eviction, is to be balanced with this law which says that a tenant may have the beneficial enjoyment of property, the condition not only need not be a constructive eviction, but may have nothing to do with the tenant’s apartment or the use or enjoyment thereof, yet, the tenant, if he or she is a welfare recipient, need not pay the rent. All others do.” (Landlord’s Memorandum, p. 5.) However, the landlord is losing sight of the fact that this law applies only where there are existing violations in the building which are 1 dangerous, hazardous or detrimental to life or health ’ ’. The purpose of the law to eradicate slums is not adequately served by conditions which may exist in a particular apartment only. It is concerned with buildings which are dangerous and unsafe to life and which are made so by conditions in the building uncorrected by the landlord. As Judge Pound said: “What is taken is the right to use one’s property oppressively and it is the destruction of that right that is contemplated and not the transfer thereof to the public use. The taking is, therefore, analogous to the abatement of a nuisance or to the establishment of building restrictions, and it is within the police power. ’ ’ (People ex rel. Durham Realty Corp. v. La Fetra, supra, p. 444.) Furthermore, even if the statute may effectuate a suspension of summary proceedings, that is no basis for invalidating the statute. “ [T] he right to a particular remedy is not a vested right * * * As a


A covenant is implied into leases that the lessee is entitled to quiet enjoyment of the demised property (Fifth Ave. Bldg. Co. v Kernochan, 221 NY 370, 376 [1917]). There must be an actual or <mask> from the premises for there to be a breach of the covenant of quiet enjoyment (Dave Herstein Co. v Columbia Pictures Corp., 4 NY2d 117, 119-121 [1958]). A constructive eviction does not require physical removal from the premises; it is sufficient to demonstrate that the lessee could not use the premises for the purpose(s) intended and had to abandon the premises under the circumstances (Dinicu v Groff Studios Corp., 257 AD2d 218, 224 [1st Dept 1999]). A breach of the covenant of quiet enjoyment can be predicated upon a partial constructive eviction, where the lessee only gives up part of the premises (Bernard v 345 E. 73rd Owners Corp., 181 AD2d 543, 544 [1st Dept 1992]).


The plaintiff’s argument would have a great deal of merit if its action was grounded in negligence or the defendant’s counterclaims for damages were based upon injuries to her person or property caused by the negligence of plaintiff’s employee during the course of his employment. However, the alleged acts which the employee committed that caused injury to defendant’s person — were: assault, rape and intimidation; and the alleged act that caused injury to her property — was robbery. None of these acts resulted from the employee’s negligence. If he did what is alleged, he committed deliberate and willful torts. Plaintiff’s argument is based solely upon the defendant’s unartful use of the word "negligence” in formulating one of her counterclaims. She claims plaintiff failed to exercise proper care in selecting, training, supervising and retaining an employee with vicious and larcenous propensities. This counterclaim is in reality related to the counterclaims of breach of quiet enjoyment and <mask>. All three counterclaims are sounded in contract. An action in contract is an action in contract, no matter what name the "rose” is called. There was a contract (the lease) between the plaintiff and and defendant. In exchange for the payment of rent, the plaintiff promised to provide defendant with the "quiet enjoyment” of an apartment. Whether plaintiff is guilty of breaching the contract by failing to exercise reasonable (and perhaps foreseeable) care in hiring, training, supervising and retaining Clarence Warren as an employee is a burden that defendant has to prove on trial; but the relevant facts are wholly within the knowledge and control of the plaintiff, thus, they are "fair game” for interrogatories.


Without discussing whether or not the acts complained of and proved by the tenant are sufficient to constitute eviction, it is sufficient to point out that, assuming that the tenant was evicted as claimed by him, nevertheless he would be liable for the rent which became due from the 1st day of October, 1931. The courts of this State have many times held that <mask> does not relieve the tenant from payment of rent already due at the time of his abandonment of the premises, even though such rent is payable in advance. (Hayden Co. v. Kehoe, 177 App. Div. 734; Bookman v. Polachek, 165 N. Y. Supp. 1023; Perry-Freeman Co. v. Murphy, 164 id. 74.) The facts alleged and proved on the trial herein may, no doubt, be interposed as defense to the payment of any further claims of the plaintiff for rent falling due after the month of October, 1931. (Edgerton v. Page, 20 N. Y. 281; Sully v. Schmitt, 147 id. 248.) It follows, therefore, that judgment must be given in this action for the plaintiff in the sum of $116.67.


Since the lease provisions authorize repairs without abatement of rent, there can be no claim for actual partial eviction nor for <mask>. (See Winston Churchill Owners Corp. v Churchill Operating Corp., 193 AD2d 396 [1st Dept 1993]; Cut-Outs, Inc. v Man Yun Real Estate Corp., 286 AD2d 258 [1st Dept 2001]; Ernst v Straus, 114 App Div 19 [1st Dept 1906]; Two Rector St. Corp. v Bein, 226 App Div 73 [1st Dept 1929].)


It cannot be said, upon the basis of the allegations, that mere inconvenience is involved or that construction is merely threatened or that <mask> would not ensue. Both parties also rely on House of Chan v. Dyckman (14 Misc 2d 595) where an application for temporary injunction was denied. There, however, it appeared that the acts complained of were not the acts of the landlord and did not have its consent. Moreover, it also appeared that the conditions complained of had existed prior to the commencement of plaintiff’s tenancy and had endured for quite some time prior to the application for injunctive relief. The motions are denied.


The burden of proving the facts upon which to base a conclusion of <mask> is on the tenant, yet no proof was offered as to the source of the water leak and he admits that he never had anyone even look at the windows during the entire three years of his occupancy, notwithstanding that under paragraph 5 of the lease, the general duty to repair is placed upon the tenant.


The law is well settled that where the tenant unreasonably delays in abandoning the premises by reason of the asserted <mask>, his right ‘ to repudiate the hiring is lost.” (Seaboard Realty Co. v. Fuller, 33 Misc. 109 [App. Term].) In Siebold v. Heyman (120 N. Y. S. 105 [App. Term, 1909]) continued occupancy of the premises for four months was held unreasonable; in the Seaboard case (supra) a delay of five months was held unreasonable; in Kent v. Ward (111 N. Y. 8. 743 [App. Term, 1908]) six months was held unreasonable; in *652Heilbrun v. Aaronson (116 N. Y. S. 1096 [App. Term, 1909]) seven months’ continued occupancy was held unreasonable. As the court said in the Seaboard case (supra, p. 111), “ The retention of the premises for such a period after the commencement of the alleged annoyance was a confirmation of the tenancy, and must be treated as an election by the tenant to perform the covenants of the lease and to retain its benefits.” In the Appellate Term decisions following the Seaboard case the courts have construed unreasonable delay as a waiver of the defense of constructive eviction (see Heilbrun v. Aaronson, supra).


The third cause of action alleges that, because of the excessive and unhealthy heat and humidity in the apartment, plaintiffs were constructively evicted from the apartment during the summer months. This cause of action for partial <mask> is subject to a one-year statute of limitations (Jones v City of New York, 161 AD2d 518 [1st Dept 1990]; Yokley v Henry-Clark Assoc., 170 Misc 2d 779 [App Term, 2d Dept 1996] [claim based on constructive eviction is actually one for wrongful eviction subject to a one-year statute of limitations]). To the extent that any of the alleged constructive eviction occurred within one year from the commencement of this action, the claim is not time-barred.


A new trial is warranted in connection with the other items of damages. With respect to plaintiffs property damage claims, the court awarded plaintiff an aggregate recovery of $9,775, even though plaintiffs own receipts for such charges, to the extent decipherable, appear to total no more than $5,500. *56As to plaintiffs claimed entitlement to a return of rents previously paid, the record shows that, while the water problems in the demised space may have existed from the commencement of the lease in March 2011, tenant remained in possession until June 2012. Since there was no <mask> until that time (see Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77 [1970]) and tenant’s rental obligations remained extant during the interim, the court’s blanket award of the full amount of the rent paid during the plaintiffs tenure cannot stand (see West Broadway Glass Co. v I.T.M. Bar, 245 AD2d 232, 232 [1997]). Rather, the proper measure of plaintiffs loss vis-a-vis the rent is “the difference between the value of the leased premises as they were intended and the value as a result of the breach” (id.), an amount indeterminable on this record.


While it has been held that the “common-law doctrine of Act of God” is, “clearly, preempted by the statutorily imposed obligations” mandating warranty of habitability in every residential lease,19 this court holds that damage alleged to have been caused by such an “act of nature,” to wit, Hurricane Sandy, cannot support a defense of <mask>, as a crucial element of the defense (a wrongful act by the petitioner) is lacking.20


The defendant’s contention is that the subtenant removed from the premises because of an alleged failure of the plaintiff to keep the premises in any kind of condition or state of repair, and the defendant further contends that Mutual Designers, Inc., the subtenant, vacated the premises because of a <mask> under the terms of the paramount lease between the plaintiff and the defendant.


While Jean and Downtown Realty both involved commercial leases, we nevertheless find both cases instructive here in the residential lease context. Appellant did not produce any evidence at trial as to why HP Home failed (i.e. omitted) to pay the utilities. Nor did Appellant product any evidence as to when or whether they were restored. The record is also void as to whether only Appellant's utilities were cut as a result of non-payment, or if the entire Trailer Park's utilities were affected, or only certain tenant's utilities were affected. Other than her own testimony as to the utilities cut as the result of non-payment, Howard was the only other witness to testify at trial on the subject, explaining he was unaware of why the utilities were unpaid. Appellant also did not present evidence HP Home, through Howard or anyone else, acted with intent to deprive Appellant with the use and enjoyment of the property by failing to pay the utilities. Because Appellant did not produce any evidence indicating anyone's intent in failing to pay the utilities, failed to show if either HP home or Howard were aware of the failure, or if the utilities were ever restored (or if there was a restoration attempt), and there is no evidence to indicate which tenants' utilities were affected, we find that the County Court did not commit error in granting the directed verdict against Appellant on the <mask> claim.


Plaintiff countered with testimony by a teacher employed in the day care center who attested to the fact that the play roof was in daily use during clement weather and had been since the opening of the center. Recent photographs of the play roof area offered by plaintiff showed some slight buckling of the tile, but more decisively, showed children at play. This graphic evidence eliminated the effectiveness of a partial <mask> claim which would necessitate not only a showing of material deprivation of the beneficial use and enjoyment of the premises, but proof that the tenant abandoned a substantial part of the premises (Union Dime Sav. Bank v Frohlich, 57 AD2d 862 [abandonment]; Zamzok v 650 Park Ave., 80 Misc 2d 573 [partial eviction]). Furthermore, by remaining in possession long after the occurrence of the condition on which defendant based its claim it waived its right to abandon the *1106premises because of an alleged eviction (Waldene Realty Co. v Pfalzer, 223 App Div 787).


Modell’s only discernible defense is that the monthly assignment payments were conditioned upon its use and occupancy of the Modell Lease premises and that its actual or <mask> therefrom excuses its obligation to make those payments. Whether Modell has been evicted, constructively or otherwise, from the demised premises is irrelevant to Modell’s obligations under the April 25, 1986 agreement, which constitutes a $1,725,000—payable over 15 years—sale of a leasehold, not a sublease. Upon the April 29, 1986 execution of the assignment of the lease, which was simultaneously surrendered and a new lease executed incorporating the former TCI space into it, TCI had no further obligations with respect to the premises. There was never any landlord/tenant relationship between TCI and Modell and the April 25, 1986 agreement contains no representations or promises as to the condition of the premises.


The Appellate Term, First Department, has recognized that “ The tenants should be protected from insult.” (Manhattan Leasing Co. v. Schleicher, 142 N. Y. S. 545, 546 [App. Term, 1st Dept. 1913] Page, J.) Where the landlord’s conduct is “ so grossly insulting and threatening in character as to seriously and substantially deprive the defendant of the beneficial enjoyment of the premises demised,” and as a result, the tenant is forced to vacate the premises, there may be a <mask> and a breach of the covenant of quiet enjoyment (cf. Onward Constr. Co. v. Harris, supra, p. 318, Seabury, J.). Whether or not there are sufficient facts to support a constructive eviction is a matter to be determined upon the circumstances of each case.


In the case at bar the Emergency Rent Laws has no application, as the plaintiffs herein do not come within its provisions, in that the rent paid for the apartment in question was eighty-seven dollars per month for four rooms, oí more than twenty dollars per room, and that the tenant could have moved from the premises and claimed a <mask>.


Implicit in the lease agreement between the plaintiff and defendant was a covenant of quiet enjoyment which "is an agreement on the part of a landlord that for the period of the term of the lease the tenant shall not be disturbed in his quiet enjoyment of the leased premises” (2 Rasch, New York Landlord and Tenant — Summary Proceedings § 27.1, at 321 [3d ed]). The breach of a covenant of quiet enjoyment requires actual or <mask> (2 Rasch, op. cit., §§ 28.1, 28.21). Constructive eviction arises when the landlord interferes with the tenant’s possession of the premises to such an extent that the tenant is deprived of its beneficial enjoyment. Typically, the causative factors are noise and water damage (see, e.g., Bernard v 345 E. 73rd Owners Corp., 181 AD2d 543 [1992] [noise]; Minjak Co. v Randolph, 140 AD2d 245 [1988] [water damage and sandblasting; punitive damages]; Rockrose Assocs. v Peters, 81 Misc 2d 971 [Civ Ct, NY County 1975] [noise]).


However, a <mask> may also occur when, as in the instant case, the landlord does not have legal authority to rent the premises (see, H.B.A. Realty Co. v Miller, 14 AD2d 607 [1961], supra ["The plaintiff having purported to lease to the defendant property he claimed to possess, but, actually over which he had no control or right to lease, constituted constructive eviction”]). Having leased her apartment without coop board approval the defendant willfully caused plaintiff to be subjected to harassment from the Fleetwood Board and threatening letters from their attorneys.


In this case, the verdict of a jury has established the fact of a <mask> from the premises in dispute, and notwithstanding the doubt of the learned appellate court of the first instance as to the rule of law, I incline to the belief that cases of this character must hereafter be decided upon the distinctive facts as presented by the whole evidence in each particular case.


Pursuant to RPAPL 745 (2) (a) (ii), at the second of two adjournment requests made by a tenant, or on the 30th day after the first appearance of the parties in court (less any days that the proceeding was adjourned at the request of the petitioner), the court can direct the tenant to pay the landlord use and occupancy unless the tenant can establish, at an immediate hearing, that it has properly interposed a defense of actual eviction, actual partial eviction, or <mask> and the tenant has quit the premises. RPAPL 745 (2) (a) (ii), however, is inapplicable in the case at bar since December 10, 2012, when the parties entered into the so-ordered stipulation in which tenant agreed to pay use and occupancy, was not the second of two adjourned dates requested by tenant, and 30 days had not elapsed within the meaning of RPAPL 745 (2) (a) (ii), as all of the adjournments except for one had been consented to by the parties (see Allmen v Andre, NYLJ, Apr. 8, 1998 at 30, col 1 [Civ Ct, NY County 1998]). Moreover, the December 10, 2012 so-ordered stipulation did not provide for the striking of tenant’s pleading in the event of a default, and the court does not have the inherent authority to grant that relief absent such a provision. Consequently, the Civil Court improperly dismissed tenant’s second amended answer and af*7firmative defense, and awarded landlord a final judgment of possession and the sum of $33,280, pursuant to RPAPL 745 (2) (c) (i).


In her appellant's opening brief, Salima concedes that the trial court *552correctly accepted Knight's argument that there can be no claim for breach of the covenant of quiet enjoyment in commercial tenancies, but she argues the trial court erred by granting summary adjudication because her complaint alleged, and she presented evidence to support, a <mask> claim. Although we note that her concession was misguided-every lease, including a commercial lease, includes an implied covenant of quiet enjoyment, although the covenant may be waived in commercial leases ( Civ. Code, § 1927 ; Avalon Pacific-Santa Ana, L.P. v. HD Supply Repair & Remodel, LLC (2011) 192 Cal.App.4th 1183, 1191, 122 Cal.Rptr.3d 417 ; Lee v. Placer Title Co. (1994) 28 Cal.App.4th 503, 512-513, 33 Cal.Rptr.2d 572 )-we conclude the trial court's grant of summary adjudication nevertheless was proper.


Until several recent cases it was generally held that no <mask> could be found if the leasehold had not been totally abandoned. Therefore, even where the tenant was constructively evicted only from part of the premises, the tenant would have to abandon the entire premises in order to have redress in a summary proceeding. Where the tenant had nowhere else to go, he or she was not only relegated to make do with only a portion of the premises, but was also relegated to a lengthy plenary proceeding for relief. Thus a landlord could create or allow a condition to render any part of the premises untenantable with impunity without any effect on the landlord’s ability to collect rent. The Appellate Division, First Department, in the case of Minjak Co. v Randolph (140 AD2d 245, 248 [1988]), however held that "the tenants were *46entitled to avail themselves of the doctrine of constructive eviction based on their abandonment of a portion of the premises.” Minjak involved a commercial lease for loft space, used for combined commercial and residential purposes, in which the tenant was unable to use that portion of the space set aside as a music studio due to dust and other problems created by petitioner’s construction in the building. In holding that relief was available for partial constructive eviction, the Minjak court carefully pointed out that the rule of constructive eviction — derived from Edgerton v Page (20 NY 281 [1859]) — is not that the tenant is barred from relief unless he has entirely abandoned the premises, but rather is barred from relief where he occupies the entire premises. As the Minjak court was ineluctably led to conclude, nothing in this rule is contrary to a holding that where a partial abandonment has been necessitated, there is a partial constructive eviction.


The court of errors, in establishing this doctrine of <mask>, made no change in the law. They overturned no principle or rule established by previous decisions, but merely extended the application of an acknowledged principle, in a case which justified the extent to which they carried it. This was the view taken of the case by Nelson, J., in Ogilvie agt. Hull, (5 Hill, 54,) and by Bronson, J., in Gilhooly agt. Washington, (4 Com. 219.) It was entirely consistent with the existing law to hold that a landlord who compelled a tenant to abandon the premises demised, by acts which rendered the further occupation of them impossible, inconvenient, or useless, evicted the tenant as fully, to all intents and purposes, as if he *122had gone upon the premises and ejected him from the possession by force.