The mere existence of a violation in and of itself does not entitle the landlord to an order of <mask> under subdivision c of section 52 of the regulations. (H. Casabianca, Inc. v. Connobbio, 205 Misc. 380; H. I. M. Props, v. Gross, 6 Misc 2d 666.) The questions are whether it is the occupancy of this tenant which is illegal, and whether removal is the only available procedure to cure the illegality. It has not been demonstrated that this tenant’s apartment is the one of the three which creates the illegal occupancy. Although the fact that this apartment is on the top (fourth) floor, which has no landing, is persuasive, it is not controlling. This is apparently the basis for the testimony of the Building Inspector, called by the landlord, that this tenant’s occupancy is illegal. It is noted he is not the inspector who made the inspection.


Even affording landlord every favorable inference, the facts as alleged in the record do not trigger the <mask> remedy authorized by RPAPL 715 (1), an essential element of which is that the illegal use made of the premises be customary and habitual (see e.g. Grosfeld Realty Co. v Lagares, 150 Misc 2d 22, 23 [1989]; 1165 Broadway Corp. v Dayana of N.Y. Sportswear, 166 Misc 2d 939, 943-944 [1995]).


*306An article 78 proceeding is the exclusive method provided for the judicial review of an order of the agency involved in the issuance of the certificate of <mask> (Montalbano v. De Luzio, 39 Misc 2d 834, and the cases cited therein). (See, also, 535-7 West 163rd St. Inc. v. Otero, N. Y. L. J., April 8, 1969, p. 2, col. 5; affd. N. Y. L. J., June 20, 1969, p. 2, col. 5.)


Residents, on the other hand, are not to be subjected to curfews and check-ins. They may live alone and work long hours (cf., Sarraf v Szunics, 132 Misc 2d 97), travel on business (Coronet Props. Co. v Brychova, 122 Misc 2d 212, affd 126 Misc 2d 946), accept temporary employment or assignment (Kamvan Co. v Rammel, 130 Misc 2d 675) and not fear the loss of their home. They may sublease if not for profit (ETPA § 10-a) to help keep their home while they are temporarily away. They may also adopt life-styles which lead to the maintenance of two residences where tradition leads us to expect to find one. (Cf., Newport Apts. Co. v Schechter, 124 Misc 2d 760, affd 127 Misc 2d 793.) What they may not do is dabble in regulated residential apartments, inserting an illegal marketplace between the legitimate owner and a prospective or actual resident. Such nonresident "investors” may be evicted either by the landlord, or by a resident subtenant (cf., e.g., Rocconi v Strong, 132 Misc 2d 190) for whom all conversion plans would otherwise be <mask> plans.


This court, therefore, holds that in this State, a tenant who is delinquent in rent payment, and who is still in possession, may only be dispossessed pursuant to section 711 et seq. of the Real Property Actions and Proceedings Law. Accordingly, the intentional acts of the landlord herein amount to an actual illegal <mask> of the tenant, relieving the tenant of any and all obligations under the lease. Therefore, all the causes of actions of the plaintiff are dismissed, except that the petitioner is awarded summary judgment for the rent for September, 1976 in the amount of $340.


*512Nevertheless, the equitable precept has been consistently enforced that the tenant must leave the premises to avoid the payment of rent, if constructive <mask> is claimed (City of New York v. Pike Realty Corp., 247 N. Y. 245; Matter of Westchester County Syndicate Corp. v. Menke, 250 App. Div. 782) and has been recently reaffirmed (Herstein Co. v. Columbia Pictures Corp., 4 N Y 2d 117). The defendant herein, therefore, could not remain in possession and not pay rent during the period of possession. On the plaintiff’s complaint, therefore, judgment is awarded against the defendant in the sum of $1,200.


“ g. (1) Where after the city rent agency has granted a certificate of <mask> authorizing the landlord to pursue his remedies pursuant to law to acquire possession and a tenant voluntarily removes from a housing accommodation or has been removed therefrom by action or proceeding to evict from or recover possession of a housing accommodation upon the ground that the landlord seeks in good faith to recover possession of such accommodation: * * *


*145In Wouk v Harewood the relevant standard form lease clause provides: "it is expressly agreed by and between the parties hereto that in the event of a dispute * * * whether concerning the lease or otherwise, which * * * shall result in action at law * * * or a proceeding by one party against the other and whether the form of the claim advanced is either in the nature of a complaint or a counterclaim in the action or proceeding * * * Tenant agrees to and hereby does waive any rights he may have to a trial by jury.” Other clauses provide for a unilateral tenant waiver of rights to "notice”, "proceedings,” of the landlord’s right to re-enter and to possession; and barring interposing any setoff and counterclaims in nonpayment cases. The unilateral nature of the tenant’s waiver of rights, clearly proscribed under law, marks the unconscionability of the provisions on their face. In fact, according to the terms of this lease, the landlord has granted to itself a "self-help” right of <mask> without any process of law whatsoever within the same provision as the tenant’s jury trial waiver. By commencing this proceeding, it could be argued, the landlord has waived the right to assert the entire clause including tenant’s jury trial waiver.


In Schweiger v. Superior Ct. of Alameda County (3 Cal. 3d 507), at a time when the California law making retaliatory <mask> a defense had not as yet become effective, the court employed the same rationale, holding that the statutory construction of California’s law regarding housing mandated the court’s recognition of the defense. “If we deny tenants a defense against retaliatory eviction in unlawful detainer actions ” the court said, “we lend the exercise of the judicial process to aid landlords in punishing those tenants with the audacity to exercise their statutory rights.” (p. 513).


At issue in these six consolidated nonpayment proceedings is the validity of petitioner’s three-day demands for rent. We agree for the reasons stated by Civil Court that the notices, insofar as they demanded "any and all arrears which may be due” for a three-to-four-year period commencing June 1989, were too indefinite and equivocal to serve as a predicate for a summary <mask> proceeding. It is apparent that petitioner, an assignee of the rents in suit, lacks knowledge as to the amounts which may be owed and the amounts paid to its predecessors in interest. The disclosure petitioner seeks in order to ascertain the remote arrears dating back to 1989 is more appropriately invoked in the context of a plenary action.


. RSC § 2522.5 (a) (2) provides: "For housing accommodations in hotels rented to an occupant who has never had a lease, such occupant may at any time during his or her occupancy request a lease and the owner must, within 15 days after such request, grant a lease commencing on the date such request was made at a rent which does not exceed the legal regulated rent, for a term of at least six months. The hotel occupant who requests such a lease becomes a permanent tenant but the lease need not be renewed. Notwithstanding the above, an owner shall not refuse to grant a lease or to extend or continue a tenancy in order to prevent the hotel occupant from becoming a permanent tenant, except to the extent that the owner may be permitted to do so by law pursuant to a warrant of <mask>, or other order of a court of competent jurisdiction, or a governmental vacate order.”


We agree that the reservation of rights provision contained in the parties’ March 11, 1999 settlement stipulation contemplated the institution of an independent, plenary action in the event that tenant chose to pursue the counterclaims asserted by her in the underlying summary <mask> proceeding settled by the stipulation. Having followed that precise course by commencing a Supreme Court action mirroring the allegations of the earlier Civil Court counterclaims (an action ultimately dismissed on statute of limitations grounds), tenant may not now disregard the plain meaning of the prior settlement agreement and achieve a second bite at the apple by attempting to resurrect the counterclaims via the within motion to “restore” them to the Civil Court calendar (compare Greenburger v Diether, 10 Misc 3d 21 [2005] [decided herewith]). Viewed somewhat differently, “[t]he dismissal on statute of limitations grounds of [the] prior [Supreme Court action] seeking the same relief against essentially the same parties is sufficiently close to being on the merits to bar the [Civil Court remedy now sought by tenant] on the ground of res judicata” (Matter of Ferranti v New York City Prop. Clerk’s Off., 6 AD3d 178, 179 [2004], citing, inter alia, Smith v Russell Sage Coll., 54 NY2d 185, 194 [1981]).


Clearly, the landlord is under no obligation to accept rent after the issuance of a warrant of <mask> (Greenberg v. Cagle, 212 N. Y. S. 2d 767), because the issuance of the warrant annuls the relationship of landlord and tenant (Emray Realty Corp. v. Lloyd, 158 N. Y. S. 2d 852). However the matter continues to be a pending proceeding until the warrant is executed (Whitmarsh v. Farnell, 298 N. Y. 336). Even after execution of the warrant, the court retains jurisdiction for certain purposes (Matter of Albany v. White, 46 Misc 2d 915; Matter of Joseph v. Cheeseboro, 42 Misc 2d 917, revd. on other grounds 43 Misc 2d 702).


These decisions from over 20 years ago notwithstanding, it is common practice in New York City summary <mask> proceedings for termination notices to contain the conclusion that a tenant has failed to cure in accordance with a previously served notice to cure, but also for those notices to omit any factual allegations supporting such a conclusion. Whether or not the law requires these facts in a notice of termination, there can be no dispute that no notice of termination should be served unless a landlord has determined that the tenant has in fact failed to cure within the specified time period. Service of a notice of termination should not be an automatic activity, triggered merely by an email reminder or other tickle informing the landlord or its attorney that the cure period has expired and that the next step before a petition can be served is service of another predicate notice.


Respondent argues that because this proceeding has been brought against a rent-controlled tenant without a certificate of <mask> petitioner may only seek an eviction when a vacate order has been issued or the violations result from tenant’s actions. (Administrative Code of City of New York § Y51-6.0 [a] [3]; New York City Rent and Eviction Regulations § 52 [c] [9 NYCRR 2204.2 (a) (3)].)


New York City Housing Auth. v. Jackson (58 Misc 2d 847 [Civ. Ct., Bronx County, another case cited by the defendant]) involved a summary proceeding for nonpayment of rent brought by the Authority against 53 tenants who urged as a defense the alleged failure of the petitioner to supply adequate protection against criminal activity in their project. The court in that case found insufficient support for the technical defense of an alleged constructive <mask>. It is on that ground alone, readily distinguishable from the tort here. However, I can and do take issue with any conclusion that the Jackson case is authority for a rule that the Housing Authority has no obligation in any circumstances to provide police protection. The court in Jackson (p. 850) found no proof that isolated acts, widely separated in time “ could reasonably have been anticipated so as to impose a duty upon the landlord to increase existing security measures.” The facts here beyond question point the other way.


Because a valid notice to cure and notice of termination (i.e., one which sets forth sufficient facts) is a condition precedent to the commencement of an <mask> proceeding, dismissal of the petition upon which the notice is predicated is required where the notice is deficient. (Chinatown Apts. v Chu Cho Lam, 51 NY2d 786, 788 [1980].) Furthermore, because a summary holdover proceeding is entirely the creation of statute, strict compliance with all statutory provisions is demanded. (MSG Pomp Corp. v Doe, supra, 185 AD2d, at 799-800; Berkeley Assocs. Co. v Di Nolfi, 122 AD2d 703, 705 [1st Dept 1986].)


To remedy this obvious defect in our jurisprudence, the Legislature enacted section 1444-a of the Civil Practice Act. This section gives a tenant, who has been wrongfully evicted upon any one of three grounds, relief in an action against the landlord. The three grounds mentioned in the statute are: (1) Personal use and occupancy by the landlord; (2) Personal use and occupancy for his immediate family; (3) The immediate purpose of withdrawing the housing accommodations from the rental market. These are three of the grounds which warrant an <mask> under both the Federal enactments and the regulations promulgated under chapter 250 of the Laws of 1950. However, there was and still are a number of additional grounds for eviction, other than those listed in section 1444-a. Despite this fact, that section specifically enumerates only the three grounds stated above and does not grant a remedy even though there has been a wrongful eviction under any of the other grounds set forth in the regulations. It is not for the court to determine that the Legislature inadvertently failed to provide a remedy in such cases; nor is it possible to place a broader construction upon the very specific language of the statute. Therefore, I am constrained to hold that the plaintiff in this action has no remedy against the landlord, even though I were to find the eviction was wrongful or fraudulent.


However, our appellate courts have held that in a proper ease a landlord has the right to include as additional rent its expenses in the nature of reasonable counsel fees and to obtain a final order of <mask> based upon tenant’s refusal to pay the same (Stakser v. Rodriguez, 23 Misc 2d 954; Matter of Ross v. Novod, 163 N. Y. S. 2d 787; Barrow Realty Corp. v. Village Brewery Restaurant, 272 App. Div. 262).


In this case, the respondents argue that petitioner never answered the December 24th letter/request to sublet. In support of this position, there is annexed to the May 29th notice of motion and affirmation by John H. Rubin, Esq., respondents’ former attorney, in which he states that he did not receive any notices or letters from petitioner between December 4, 1986 and March 6, 1987. The allegation is therefore raised that petitioner surreptitiously submitted a judgment and warrant of <mask> to the Yonkers City Court on or about January 7, 1987 without notice to the respondents or their attorney and that the affidavit of service by Elaine Abraham was a "total and complete fabrication”.


In its notice of petition, the landlord prays for a final judgment of <mask> against the tenant, awarding the landlord possession of premises: “Apartment No._on *507the 2nd floor, consisting of all rooms in premises known as and located at 129 East 56th Street, 2nd FL, New York, New York.” (Emphasis supplied.) In its petition dated September 8, 1981 the landlord likewise describes the premises for which possession is sought as: “The all-room apartment at 129 East 56 Street, 2nd FI., New York, N.Y.” (Emphasis supplied.) The landlord also alleges that Leonard Harrison is the tenant of said premises.


We note that the posture of this litigation has changed since the motion court initially set the undertaking. By this decision, we have modified the injunction to permit the owner to enter the tenant’s space to work on the elevator, and we have affirmed the motion court’s judgment declaring that the owner is not entitled to engage in a self-help <mask>. Accordingly, we remand the matter to determine what undertaking, if any, should be set on the tenant’s preliminary injunction. The court should also determine whether, pursuant to CPLR 6314, the owner should be required to post an undertaking as a result of our modification of the injunction.


That argument overlooks two dispositive points. One is that any rights conferred by subdivision 7 accrue only if a conditional renewal lease had been voluntarily and timely offered to a nonpurchasing tenant. Once having chosen not to offer a cancelable renewal lease and to gamble on the plan being declared effective and sustained as an <mask> plan, an owner may not take advantage of this provision. The second is that the right to collect increases under subdivision 7 vests when the plan is abandoned, not where it is declared void ab initio.


*250Less than a year later, the same landlord surfaced again in Aweeka v. Bonds (1971) 20 Cal.App.3d 278, 97 Cal.Rptr. 650, a Court of Appeal case that also involved a pre- section 1942.5 <mask>. The Aweeka case was a virtual replay of Schweiger , supra, 3 Cal.3d. 507, 90 Cal.Rptr. 729, 476 P.2d 97, but in a slightly different procedural posture. There, a group of tenants demanded the repair of dilapidated conditions, and for that, their rent was raised from $75 to $145 per month. Instead of waiting to be sued in an unlawful detainer action, they sued for retaliatory eviction. They lost on demurrer. Reversing, the Court of Appeal extended Schweiger to authorize an affirmative claim for damages. The court explained: "We can discern no rational basis for allowing ... a substantive defense while denying an affirmative cause of action. It would be unfair and unreasonable to require a tenant, subjected to a retaliatory rent increase by the landlord, to wait and raise the matter as a defense only, after he is confronted with an unlawful detainer action and a possible lien on his personal property. ... Accordingly, we conclude on the authority of Schweiger that the complaint stated a cause of action for retaliatory eviction." ( Aweeka , supra , at p. 281, 97 Cal.Rptr. 650.)


Edward H. Lehner, J. This action raises issues as to (1) whether a tenant who successfully defended two holdover proceedings, both of which were dismissed on procedural grounds without a determination on the merits, but whose <mask> is still being sought in a pending nonpayment proceeding, may recover an attorney’s fee under the implied covenant of section 234 of the Real Property Law, and if so, (2) may *81such a fee be payable to the tenant who is an attorney and represented himself.


While the rent laws make no provision for co-operative apartments, they do authorize the Bent Administrator to promulgate regulations in connection with increases in rent and evictions. Pursuant to such power, the Bent Administrator has promulgated Amendment 39, effective June 30, 1955 (amdg. State Bent & <mask> Begulations, § 55, subd. 3, par. [c]) which provides the method by which owners of co-operative apartments may obtain a certificate of eviction. The co-operative plan presented by defendants is claimed to be in compliance therewith.


“Persons who may maintain proceeding— Landlord or lessor — Privity is required “The relationship of the landlord to the respondent must involve both privity of contract, based on the agreement between the parties, and privity of estate, based on the transfer of interest in the real property. (New Amsterdam Casualty Co. v National Union Fire Ins. Co. of Pittsburg, Pa., 266 NY 254, 194 N.E. 754, 99 A.L.R. 216 [1935]). “In other words, an owner may maintain a summary <mask> proceeding against a respondent if the owner entered into a lease or other occupancy agreement with the respondent, or if the owner succeeded to the interests of one who had such an agreement.” (See e.g. 3414 KNOS LLC v Bryant, NYLJ, Jan. 12, 2011 at 25 [Civ Ct, Bronx County] [proceeding brought by owner, not leaseholder, of apartment was jurisdictionally defective and not amendable].) Based upon the foregoing, this proceeding is dismissed without prejudice to renewal because there is no landlord/ tenant relationship between petitioner and respondents.


The facts are not disputed. The landlord brought suit in the Municipal Court on February 18, 1958, to evict the tenant for nonpayment of rent. On the same day, the parties stipulated that judgment be entered in favor of the landlord for $1,550, that a final order be issued immediately with a stay until February 21,1958, at which time the tenant was to pay the landlord $1,000 and upon such payment the final order was to be stayed until February 28, at which time the balance of $550 was payable. The stipulation further provided that if the agreed payments were made, the final order would be vacated and if not, a warrant could be issued ex parte and without notice on February 28. Upon submission of the stipulation to a Justice of the Municipal Court, it was “so ordered”. The tenant then made the initial payment of $1,000, but failed to make the payment of $550 which was due before February 28. It appears that on March 6,1958 a warrant was issued in the <mask> proceeding. That warrant has not, as yet, been executed. On March 8, the tenant obtained from the Municipal Court an order to show cause why the final order and warrant should not be vacated on the ground that there had been substantial compliance with the stipulation by the $1,000 payment. In support of the order to show cause, the tenant submitted an affidavit in which she attempted to excuse her inability to pay the additional amount of $550 because of the illness of herself and her nine-year-old daughter. Moved undoubtedly by the severity of the relief available to the landlord, the respondent Municipal Court Justice ordered, among other things, a further stay of the warrant so as to extend the tenant’s time to make the additional payment of $550. That order is the subject of the present review.


But the defendant alleges, and alleges truly, in my opinion, that no other plea than an entry and <mask> will be a good bar in an action of covenant for the payment of rent. It seems to me that this is the strongest evidence of the correctness of the opinion of the supreme court, which they so strongly fortify by the cases to which they have referred, that an actual entry and eviction must not only be pleaded, but proved.


The amendment makes clear that a landlord cannot use a violation as a predicate for <mask> unless either of two circumstances are proven: (1) an appropriate agency has already issued a vacate order or (2) the violation was created by the tenant. This amendment therefore rendered moot the premise of Widamo’s dictum. (See, Sandflow Realty Corp. v Diaz, 64 Misc 2d 625, owner permitted to maintain eviction proceeding where uncontradicted city inspection report found gross overcrowding and where uncontradicted evidence indicated that condition was caused exclusively by the tenants.) Nevertheless, Widamo was cited, despite the change in law, as part of an alternative holding in Munroe (supra), a case involving the rights of unrelated occupants under the then-applicable law. (See, Hudson View Props. v Weiss, 86 AD2d 803, revd 59 NY2d 733, legislatively abrogated by Real Property Law § 235-f, as added by L 1983, ch 402 § 39.) Munroe is therefore also inapplicable to the case at bar.


A little further on in the return the Justice throws light upon the above terse entries by stating in a signed statement that the “ Decision in favor of the petitioner in the above entitled matter having heretofore been made by the undersigned, * * * and the date for the signing of a warrant of <mask> having not yet arrived and the tenant, Minnie Loughrey, having duly made application for a re-opening of this case,” he thereby ordered, adjudged and decreed “ that this proceeding be and the same is hereby re-opened and that a hearing upon the merits be and the same hereby is ordered and directed to be held ” stating as grounds for such order reasons numbered 1 through 3 set forth in substance as follows:


Plaintiff commenced the instant action by securing an order to show cause dated December 3, 2007, which included a temporary restraining order restraining and enjoining defendants from initiating or filing <mask> proceedings against plaintiff or taking any other action to evict him from his apartment. In issuing the order to show cause, the court directed plaintiff to pay use and occupancy in the amount of rent provided in his prior lease, commencing December 5, 2007 and by the fifth day of each month, until further order of the court.


There is a further question made by the plaintiff, viz., that, as no notice was ever served on him, the occupant of a part of the lot, the right of redemption has never been cut off. We do not think it necessary to decide that. The present case is like that of McCoy v. Lord (19 Barb., 18). The only difference is that in that case the plaintiff redeemed the lands on the last day of the two years’ time for redemption; in this case the defendant redeemed the lands within the additional six months given by the subsequent section. We are of the opinion that there was no <mask> proved ; that no cause of action arose for a breach of the covenant.


The landlord certainly cannot be held liable for the conduct of strangers, and especially when relief might have been had against them by application to the police; nor can the acts of strangers, claiming under no title, produce an <mask> ; which must arise from the wrongful acts of the lessor in interfering with or disturbing the tenant’s occupation. Edgerton v. Page, 1 Hilton, 320; affirmed, 20 N. Y. R. 281.


The <mask> of the tenant is sought under the provisions of paragraph (a) of subdivision 1 of section 5 of the State Residential Rent Law (L. 1946, ch. 274, as amd.) which, among other things, authorizes summary removal of a statutory tenant when it is shown that he is “ violating a substantial obligation of his tenancy ”. (Italics added.)


Daly, F. J. In the summary proceedings instituted by the plaintiff to dispossess the defendant, the defendant traversed the second allegation that he was indebted to the plaintiff for two quarters’ rent, from the first of May to the first of November, 1863, that he had made default in the payment of the rent, that he had held over after making default, without the landlord’s permission, that the rent had been demanded of him; and set up in his affidavit the facts upon which he now relies as constituting the <mask>. The present action *451was brought to recover the quarter’s rent from the first of ¡May to the first of ¡November, 1863, so that the question at issue in this action, whether the defendant was indebted for that quarter, was at issue in the summary proceedings.


As the Appellate Term, First Department, recently Wrote in an <mask> proceeding:17 “The manifest purpose of *411emergency rent legislation is to secure to a tenant in possession the right to be continued in possession at a regulated rental. We find the totality of tenant’s conduct to be inconsistent with this objective and constitutes a material breach of the obligations of a statutory tenancy.”


Respondent’s defense raised the question as to the necessity of petitioner to obtain a certificate of <mask> from the Commissioner of DHCR prior to the commencement of this proceeding, as required by the regulations of the Private Housing Finance Law and 9 NYCRR 1727-5.3. Relying on several decisions of this court to the effect that since the respondent was neither a tenant nor cooperator, such certificate was not required, petitioner contended that it could proceed herein. I view this to be a very narrow interpretation of the term "tenant” especially in instances where the respondent in possession has a color of right to the apartment to begin with. When administrative procedures are set up, it is desirable that such agency be resorted to before court proceedings are commenced.


John R. Schwartz, J. In this summary proceeding, the landlord/petitioner, Cross*831roads Apartments Associates, a Federally assisted apartment complex (hereinafter referred to as Crossroads), seeks to evict its tenant/respondent, Kenneth LeBoo (hereinafter referred to as LeBoo). The sole basis for this <mask> proceeding is that LeBoo is in possession of a cat in violation of the terms and conditions of a written lease. In particular, rule 8 of that lease states that: "No dogs, cats or animals of any kind shall be kept or harbored in the apartment for any period of time.” LeBoo answers affirmatively that he is a handicapped person as defined by section 504 of the Rehabilitation Act of 1973 (29 USC § 794) and its implementary regulations (24 CFR 8.1 et seq.) and as defined by the Fair Housing Amendments Act of 1988 (42 USC § 3602 [h]) and its implementary regulations, by virtue of his mental illness.


The issue of whether a wife is a necessary party to an <mask> proceeding is therefore not subject to determination as a matter of law, but only upon consideration of whether she has "independent possessory rights” based on the particular circumstances of her occupancy of the apartment. Thus, petitioner’s motion to dismiss respondent’s defenses must be *757denied because based solely on the untenable claim that a wife has no tenancy rights independent of her husband’s. Conversely, respondent’s motion to dismiss will not be granted as a matter of law simply because he has a wife who was not named as a party. Rather, in seeking dismissal for failure to join his wife, respondent has the burden of showing that the circumstances of his wife’s occupancy are such that she is a necessary party in whose absence "the court should not proceed.” (See, CPLR 3211 [a] [10].)


Helen E. Freedman, J. Faced with imminent <mask> for nonpayment of rent from long-term or otherwise desirable residences, Jannett Doyley and several petitioners-plaintiffs interveners (collectively, *653plaintiffs) applied for Emergency Home Relief (EHR) grants to pay the arrears and retain their homes. The applications were denied on the ground that their individual or family income exceeded 125% of the Federal income poverty line, a ceiling prescribed by a recent amendment to the regulations governing the EHR program.1 The amendment at issue was first adopted as an emergency regulation and then on a permanent basis by the New York State Department of Social Services (DSS), which administers the EHR program. Defendant-respondent (defendant) was acting Commissioner of DSS.


On August 12, 1982, the United States Court of Appeals affirmed the District Court’s decision. The tenants then moved in the Civil Court to vacate the final judgments and warrants of <mask> based upon the 1982 Loft Law. On August 16, 1982, a Civil Court Judge signed an order staying any eviction of the tenants pending hearing of their motion. On August 17, 1982, the landlord applied to that Judge to vacate the stay. The Judge, after hearing both sides, substantially denied the landlord’s application, stating that the new loft legislation presented an overriding issue that had never been before any court.


It must be held on this record that landlord railed to sustain the burden of proof to warrant an <mask> on the grounds of malicious damage, refusal to grant access for necessary repairs, or nuisance interfering with the safety and comfort of landlord and other tenants in the use of housing accommodations. The charges as to false complaints of forgery relate to the agent personally and may not serve as an independent ground of eviction, although admissible on the question of tenants’ intent. Such evidence, as well as that dealing with a similar forgery complaint concerning tenants ’ alleged filing of a wholly unwarranted application, for a rent decrease, was neither clear nor complete. Assuming that these charges are connected with the issue of nuisance in the use of housing accommodation, which is the basic ground for which an eviction is permissible, it would be necessary to produce the original evidence supporting them and not rely upon the testimony of interested persons. The final order in landlord’s favor is not justified on the basis of the evidence presented by her on this trial. There may be substance to her complaints, but the proof given fell short of the requirements reasonably imposed to protect tenants during this emergency period. This determination is not to be construed as a vindication of tenants’ position but simply as holding that the proof elicited was insufficient.


“17. First, as mentioned above, there was no delay as the Lender and Landlord requested that I refrain from qualifying while said parties attempted to negotiate a resolution to the foreclosure lawsuit. Secondly, the issues relating to the Parking Garage began long before I was appointed *206Receiver. Moreover, had I qualified at an earlier date and collected the monies during the period in question, the funds collected would not have covered the cost of the repairs of the Parking Garage, which is over $8 million dollars! Lastly, the repairs to the Parking Garage constitute a capital improvement, and the Appointing Order does not authorize me to pay for such improvements. “18. For these reasons, Respondent cannot hold me responsible for the closure of the Parking Garage.” As of November 11, 2015, respondent owes $415,932.30 in rent and additional rent for which respondent was billed. Petitioner requests a money judgment with a judgment of possession and warrant of <mask>.


I think the motion should be denied upon the following grounds: There are two questions which the magistrate before whom the summary proceedings for <mask> are now pending, will be bound to determine upon the trial before him: Eirst, whether the relation of landlord and tenant exists, as stated in the complaint before him, and, Second, whether the tenant is holding over after her term has expired. As to the former, there will of course be no difficulty. The latter fact will be established, prima fade, by the lease itself, proof of notice to quit, and a refusal of tenant to go. But if the defendants in those proceedings shall succeed in establishing the fact that the landlords, for a sufficient consideration, had, prior to any notice, agreed even by parol with the tenant, to waive and abandon their right to give the ten days’ notice, or in other words, had undertaken that they would not exercise such right, it will follow that at law as well as in equity the subsequent giving of the notice in violation of that agreement must be held to be void and of no effect, and therefore that the tenant is not holding over contrary to the terms of the sealed lease. There is not a single question raised by the complaint in this action which may not properly be inquired into and determined by the magistrate before whom the summary proceedings have been instituted. He has full jurisdiction to hear and determine al,l those questions, and for that reason this court ought not by its injunction to restrain the plaintiffs in the summary proceedings from prosecuting the same.


The parties consciously chose to chart the procedural course of this action when they filed a motion and cross motion for summary judgment. In its cross motion for summary judgment, petitioner expressly alleged that respondent breached its obligations pursuant to the lease and the law by illegally subletting and profiteering. Petitioner specifically sought a final judgment of possession and a warrant of <mask>. At this point, the case was no different from any other summary proceeding based upon alleged illegal sublet or profiteering. As in the original complaint, petitioner alleged that respondent took occupancy pursuant to a written rental agreement which is used to calculate the legal rent for the subject loft. Both the complaint and the moving papers alleged that respondent violated the law and impliedly his lease by collecting an amount in excess of the legal rent. The basis for the claim of an illegal sublet is found in the prohibition on subletting set forth in the lease as well as in the prohibition on subletting set forth by statute, incorporated by implication into the lease.


The statutory protections against retaliatory <mask> are set forth in section 223-b of the Real Property Law, which applies to “all rental residential premises except owner-occupied dwellings with less than four units.” (Real Property Law § 223-b [6].) It provides, among other things, that no landlord shall serve a notice to quit or commence a summary proceeding to recover possession of real property in retaliation for


This is manifest upon referring to the early cases. In Cibel v. Hills (1 Leon., 110; 18 Vin. Abr., 513, tit. Rent, 1, subd. 2), it was held that the possession must be in the landlord, to suspend the rent. In Reynolds v. Buckle (Hob., 326 a), the defendant pleaded that before rent became due, “ the plaintiff did enter upon him,” but did not say that “ he expelled him or held him out;” and it is said, in the report of the case, that, as a plea in bar, it was insufficient. In Jones v. Boddinger (Comb., 380), it is said expulsion makes the first part of the bar, and holding out, the rest. In Arnold v. Foot (3 Keb., 453), the plea was declared bad, because it did not say expul-it or amovit, nor that the plaintiff continued in possession, as it ought to be, being pleaded by way of suspension. In Hunt v. Cope (Cowp., 243), Aston, J., said: “ All the cases in the books suppose the lessee to be put out of possession; therefore, merely saying that he is deprived of the enjoyment of the premises is not sufficient,” and the plea was held no bar. The distinction which runs through all the early cases—that it is the deprivation of the possession of the whole or of some part, by the wrongful resumption of it on *9the part of the landlord, which works the suspension or extinguishment of rent—has been recognized and acted upon in several American cases. (Briggs v. Hall, 4 Leigh, 485.; Jackson v. Eddy, supra; Bennet v. Bittle, 4 Rawle, 339; Cram v. Dresser, 2 Sandf. S. C., 120; Wilson v. Smith, 5 Yerger, 399.) In this last case it is said: “ An interference by the landlord, unless the tenant be wholly evicted and expelled from the possession, is not a discharge from the payment of the stipulated compensation ; but makes the enterer upon his possession a trespasser, liable to make satisfaction for the damages in the appropriate actionand it was further remarked, that the relation of tenant continues as long as the tenant continues to hold the possession. Sometimes the distinction between a mere trespass and an <mask> is very close. As in Briggs v. Hill (supra), where the landlord entered upon a farm he had demised to the tenant, and mowed the meadow-land. This was held to amount to an eviction, because the principal enjoyment and possession of a meadowland is the taking and using the hay, and the man who does this is, to every rational purpose, the possessor. This was an extreme case, for declaring that the possession of part of the premises demised was in the landlord and not in the tenant, but it shows that this change of possession must take place or there is no eviction.


On May 31, 1983, the Loft Board promulgated a regulation that authorized landlords of registered IMD’s to bring <mask> proceedings against residential occupants whose units were not their primary residences. (New York City Loft Board, Rules and Regulations Relating to Determination of Interim Multiple Dwelling Status and Issues of Coverage and Bases for Eviction under Article 7-C of the Multiple Dwelling Law, § J[l][a], The City Record, June 7, 1983 [hereinafter cited as Rules & Regs on Bases for Eviction].) This regulation was purportedly promulgated pursuant to section 1105 of the New York City Charter, section 282 of the Multiple Dwelling Law and the Mayor’s Executive Order No. 66.1


As noted above, Mr. Huggins did not file a written answer, and the only defense he raised at the pretrial conference was that his lease was still in effect. He did not raise a retaliatory <mask> defense until he began to testify on the first day of trial. Because retaliatory eviction must be asserted as an affirmative defense, the court may consider that defense, therefore, only if Mr. Huggins’ answer is amended to include it as such.


Accordingly, the petition is granted and the orders reviewed herein and the certificate of <mask> issued thereunder are vacated, for the reason that the determination of the respondent was not in keeping with established administrative principles, set forth in Matter of Everly v. Weaver (7 Misc 2d 965, 976977). However, the matter will be remanded to the respondent for further consideration, including the making of specific findings as to the time elements herein indicated and appropriate findings on the evidence as to the controlling factors warranting the issuance of a certificate of eviction, if it be found upon such further consideration that eviction is appropriate.


At the time the petitioners and Anderson took title, the *6ground floor apartment was vacant and the other two apartments were occupied by rent-controlled tenants. Anderson immediately began to renovate the ground-floor apartment with the intention of occupying it himself, and on February 14, 1975 petitioner Sperrazza applied to the Central <mask> Unit of the Department of Rent and Housing Maintenance for a certificate of eviction of the tenant occupying the second-floor apartment and petitioner Schiller made a similar application with respect to the third-floor apartment. Each sought the apartment for his own personal use and occupancy. Petitioners’ applications were denied by the Director of the Central Eviction Unit on October 9, 1975 and thereafter, on October 28, petitioners filed individual protests against the orders of denial. The protests were consolidated by respondent commissioner and on February 4, 1976 he issued a single order denying them. The basis for respondent’s determination, as set forth in his order and opinion, was that petitioners and Anderson were not tenants in common but were members of a co-operative association, and that as such, they were required to comply with subdivision c of section 55 of the regulations, which they had concededly not done.


Katherine A. Levine, J. The first issue presented is whether a commercial lease term can be terminated automatically when a tenant defaults in payment of rent or real estate taxes, and the landlord previously violated the lease resulting in a judgment for the tenant which remains unpaid. The second issue is whether the tenant established a valid defense to the holdover by showing that the judgment amount in the tenant’s favor exceeded the unpaid real estate taxes claimed as the basis for <mask>.


The petitioner claimed that respondent’s decision is arbitrary and not warranted by the facts or law. The respondent contends that it acted in accordance with its interpretation of subdivision b of section 21 of the Rent, <mask> and Rehabilitation Regulations of the City of New York. This section provides that “ b. For housing accommodations for which there was no maximum rent in effect on April 30,1962, and which were rented subsequent to April 30, 1962, the maximum rent shall be the first rent charged ”, Petitioner contends that by the term “ the first rent charged ” is meant rent actually collected under a valid rental agreement. The respondent contends that the Edwards lease was binding on the petitioner until disavowed by Edwards and established the first rental charged, even though the tenant Edwards never entered into possession. The Edwards lease, when executed and until disaffirmed by Edwards, was a valid lease and enforcible by Edwards against petitioner. It certainly was evidence of what the petitioner thought the proper rental of the apartment should be at the time. The interpretation by respondent of its own regulations is entitled to great weight (Hotel Armstrong v. Temporary State Housing Rent Comm., 11 A D 2d 395) and, even if the court might have arrived *864at a different conclusion, should not be disturbed unless the decision is clearly arbitrary and contrary to law. Under the circumstances here, the decision of respondent fixing the rental of this apartment cannot be considered arbitrary or contrary to law. The petition is dismissed.


*593All the cases distinguished above involve properties held out as residential units where the tenants presumably received the benefits flowing from the occupancy of a residential dwelling including but not limited to heat, sanitation, and rent regulation statutes. In the case at bar, the petitioner contends these buildings are commercial buildings with permissible AIR occupancies and that substantial compliance with the external structual safety requirements of article 7-B of the Multiple Dwelling Law and local housing codes, relieves him of the penalties imposed for failing to comply with sections 301 and 325 of the Multiple Dwelling Law and section D2641.01 of the Administrative Code. However, the respondents have not had the legal benefits of multiple dwelling status and their occupancy, in violation of the commercial certificate of occupancy makes them subject to <mask> at any time. The Multiple Dwelling Law and the Administrative Code were designed to "discourage landlords who would ignore building restrictions and offer an illegal apartment to an unsuspecting tenant. It further serves to penalize the owner as well as protect the tenant from eviction at the whim of the landlord.” (Corbin v Harris, supra, p 483.) Accepting the petitioner’s argument would result in owners circumventing the statutory scheme regulating multiple dwellings and render meaningless the public purposes of the protective framework of housing safety, health and land use laws.


This holdover proceeding was commenced in October 1990 based on nuisance, specifically the accumulation of newspapers and debris in respondent’s apartment causing a health and fire hazard (see, Frank v Park Summit Realty Corp., 175 AD2d 33, mod on other grounds 79 NY2d 789). After numerous adjournments and stipulations, giving respondent ample time to cure with the assistance of numerous community organizations, which cure was not effected due to respondent’s refusal of access to her apartment, a stay of the warrant of <mask> was lifted.


J. Kevin Mulroy, J. This is an appeal from a decision/order of the Syracuse City Court, dated December 23, 1996 (172 Misc 2d 254), dismissing the petitioner-appellant’s petition for recovery of real property from respondent, a public housing tenant. The stipulated facts are that on May 3, 1995, the respondent’s usual babysitter became unavailable and the respondent asked the father of her child to come to the premises which are the subject of the peti*401tion in order to care for the child while respondent worked. While respondent was at work, respondent’s child’s father invited two other people to the premises and they sold drugs from the premises and, as a result, were arrested. Petitioner, citing (among other cases) City of S. San Francisco Hous. Auth. v Guillory (49 Cal Rptr 2d 367, 41 Cal App 4th Supp 13) and Minneapolis Pub. Hous. Auth. v Holloway (1995 Minn App LEXIS 1028 [Minn Ct App, Aug. 15, 1995, Holtan, J.]), contends that a tenant can be evicted from public housing based on conduct which a tenant cannot reasonably foresee, prevent or control. The lower court disagreed, holding that when a public housing tenant is not personally at fault for the drug-related criminal activity of a guest, good cause for termination of the lease and <mask> does not exist. Petitioner appeals from that determination.


This proceeding, brought in the commercial landlord/ tenant part, seeks the <mask> of the respondent tenant and undertenants on the basis that their commercial lease has expired. The court has ruled above that the tenancy of the fourth floor that is the subject of this proceeding contains four separate residential, not commercial, spaces. The court has also ruled that there are four other spaces in the building that have been converted to residential use. The building is, therefore, a multiple dwelling within the meaning of Multiple Dwelling Law § 4 (7). The petitioner has failed to plead and/or prove at trial that a multiple dwelling registration has been filed for this building, as required by Multiple Dwelling Law § 325. It is also clear from the evidence that the residential oc*401cupancy of this building is in violation of the certificate of occupancy and, thus, violates Multiple Dwelling Law §§ 301 and 302. Moreover, RPAPL 741 requires that a petition properly allege the multiple dwelling and rent regulation status of the building. The failure to allege a multiple dwelling registration where one is required compels the dismissal of this proceeding. Similarly, the failure to allege the rent regulation status of the building where the building qualifies for such status compels the dismissal of the proceeding. As petitioner has failed to plead and prove the filing of a multiple dwelling registration or registration of the unit with the Division of Housing and Community Renewal as rent stabilized, the petition is dismissed.


In this action for unlawful <mask>, the jury awarded plaintiff $2,000 for economic loss, $133,000 for pain and suffering, and $100,000 for punitive damages, for a total of $235,000. The court granted defendants’ motion to set aside the verdict and ordered a new trial unless plaintiff agreed to accept a reduced sum of $21,000 computed as follows: $2,000 for economic loss and $5,000 for pain and suffering, for a total of $7,000, which sum was to be trebled pursuant to RPAPL 853 to $21,000.


In Hosey v. Club Van Cortlandt (299 F. Supp. 501, supra) the Federal court faced the same problem and had available to it the same cases which are available to us. It held the law in New York unsettled “ whether retaliation is a defense to a holdover proceeding” (299 F. Supp. 501, 507). It denied the preliminary injunction for a lack of the threatened constitutional violation which would have been present were it settled in New York that such a defense could not be raised. At the least, we concur with the reasoning of the Federal court. At the most, we feel that the same cases settle the law in New York to permit the defense of retaliatory <mask> to be raised in a summary holdover proceeding. (See Club Van Cortlandt v. Hosey, *256N. Y. L. J., June 11, 1970, p. 2, col. 2; Portnoy v. Hill, 57 Misc 2d 1097.) Of the seemingly contradictory cases Matter of New York City Housing Auth. v. Gantt (57 Misc 2d 447) did not involve a defense of retaliatory eviction, and Lincoln Sq. Apts. v. Davis (58 Misc 2d 292) which was affirmed without opinion by the Appellate Term (64 Misc 2d 859) was, by the same court in Club Van Cortlandt v. Hosey (supra), limited to its own facts with such succinct finality as to make it practically an orphan and deprive it of hope for posterity.


Clearly, so far as stated the council was within its power to enact a local law addressing the power of a landlord to procure an <mask>. But the third paragraph, however, of section 1 of chapter 372 of the Laws of 1971 contains a so-called Urstadt restriction, herein set forth in pertinent part: “No housing accommodations presently subject to regulation and control pursuant to local laws * * * [and] ordinances adopted or amended under authority of this subdivision shall hereafter be by local law or ordinance subjected to more stringent or restrictive provisions of regulation and control than those presently in effect.”


The answer in this case shows a disturbance of the beneficial enjoyment, but no interference with the possession. Any trespass upon the premises demised is a disturbance of the beneficial enjoyment, but an interference with the possession is either an entry under color of right or assumption of title, or an absolute deprivation of the possession in whole or in part. The answer does nob show an eviction, total or partial, or any unlawful injury to the premises in violation of the contract. There is implied in the contract, being a demise or letting for a year, a covenant for <mask> (The Mayor of New York v. *11Mabie, 3 Kern., 151); but a covenant for quiet enjoyment, whether express or implied, relates only to title, and not to the undisturbed enjoyment of the premises demised when there has been no eviction, or entry under assumption of title. (Howard v. Doolittle, 3 Duer, 474; The Mayor of New York v. Mabie, 3 Kern., 151; Lloyd v. Tompkins, 1 T. R., 671; Platt on Covenants, 312-320.) Nothing of that kind appears by the answer. It sets up'a trespass not made under an assumption of title nor resulting in an eviction, and therefore no breach of the contract of hiring. It is not then a cause of action arising out of the contract, and as the contract is here the subject of the action, it cannot be said to be connected with the subject of the action.


Furthermore, the right to a declaratory judgment is discretionary; and this court may decline jurisdiction (Rules Civ. Prac., rule 212) where existing forms of action are reasonably adequate to protect the interests of the plaintiff and there is no necessity for seeking a declaratory judgment (Newburger v. Lubell, 257 N. Y. 383 ; James v. Alderton Dock Yards, 256 N. Y. 298; Balkan Demolition Co. v. Yorkshire Ins. Co. of N. Y., 3 A D 2d 902; American News Co. v. Avon Pub. Co., 283 App. Div. 1041). Plaintiff has traditional remedies available; among others, it may sue for damages for breach of lease, for breach of covenant of <mask>, for constructive eviction, or it may remain in possession and sue for any breach, or it may make repairs and sue for reimbursement.


In Jekyll, the parties stated in the lease that the interest of the lessee was an estate for years and that the lease created a “leasehold estate.” Second, the lessee had a right to extend the lease upon expiration of the 55-year term. Third, the Diversified Golf, LLC., lessee had the right to encumber its interest in the property as security for loans. Fourth, the lease contained a covenant of <mask> for the lessee’s benefit. Finally, the restrictions placed on the use of the land in [Diversified] are much greater than those in Jekyll, where use of the property was not burdened with wastewater disposal. Here, Diversified’s use is severely restricted and always subject to use as a wastewater spray field.


In opposition to Knight's motion, Salima argued that she was lawfully in possession of the premises, and retained all legal rights of possession up to the time she was dispossessed following the completion of the unlawful detainer process. With regard to the conversion claim, Salima argued that Knight's defense that Salima had abandoned her property was legally deficient because her claim was based upon environmental contamination, and that the act of conversion was completed when her medical equipment and supplies were contaminated as a result of the raw sewage spill. She also argued that the abandonment defense was factually deficient because Knight failed to show that she complied with statutory notice requirements that apply when premises are vacated. With regard to the breach of the covenant of <mask> claim, Salima agreed with Knight's assertion that this kind of claim does not apply to commercial properties, but argued that the allegations of the claim adequately pleaded a claim for constructive eviction; she asked the court to ignore the label of the claim and treat it as a claim for *845constructive eviction. Addressing the nuisance claim, Salima argued that Knight's illegality argument was baseless, and that there were disputed factual issues raised by Rahim's testimony. Salima argued that the negligence/strict liability claim could not be resolved on summary judgment because there was evidence that Knight was given notice of plumbing problems in the past, and was given notice of the sewage issue immediately after it occurred. With regard to the contract interference claim, Salima argued there were factual disputes regarding Knight's knowledge of the sale and the fact of the sale; she noted there was a signed contract for the sale, and that her deposition testimony that she did not sell her practice was of "no moment" because she was not involved in the business end of the practice. Finally, Salima argued there were no grounds to grant summary adjudication of the section 17200 claim because it is based upon her other claims, all of which should survive summary adjudication.


As a counterclaim, Greenwich-Kinney asserts that under paragraph FIFTH it had the right to erect a car wash and, accordingly, Texaco’s refusal to permit the assignment to Black Hawk for such purpose was unreasonable. It seeks a declaratory judgment to the effect that (1) the car wash is a permitted use under the lease as incidental to parking; or (2) circumstances beyond its control having prevented it from operating the parking lot *821profitably, it is entitled to use the premises as a car wash under paragraph FIFTH. Finally, Greenwich-Kinney seeks recoupment of rents paid since August 1,1969 based on Texaco’s alleged breach of <mask> by its refusal to consent to the assignment.


24 CFR 450.3 (c) defines the term “material noncompliance with the rental agreement” to include one or more substantial violations of the rental agreement or repeated minor violations of the rental agreement which disrupt the livability of the project, adversely affect the health or safety of any person or the right of any tenant to the <mask> of the leased premises and related project facilities, interfere with the management of the project or have an adverse financial effect on the project. Petitioner has elected to charge the tenant with one or more substantial violations of the rental agreement.


Richard F. Braun, J. Plaintiff is suing defendants for damages for breach of the covenant of <mask>, pursuant to the New York City Smoke-Free Air Act (Administrative Code of City of NY, tit 17, ch 5 “and/or” Public Health Law art 13-E), and for nuisance. Defendants 370 Lexington Avenue, LLC and Murray Hill Property Management, Inc. moved for summary judgment dismissing the complaint and all cross claims. By stipulation, the branch of the motion addressed to cross claims was withdrawn.


The main question on this appeal is whether the sale under the surrogate’s order, the purchase by defendants and deed to them, '' operate to perfect a liability in favor of defendants against plaintiffs’ assignors, on their covenant of warranty in the deed to defendants. In the case of Cowdrey v. Coit (44 N. Y., 382) the grantee, in a deed containing covenants of warranty and of <mask>, became himself the purchaser on the foreclosure of a prior mortgage and then sold his bid to a third party, surrendering to him the possession on his obtaining the sheriff’s deed, and it was held to be an eviction and available as a defense to an action on a bond for purchase-money, and the court say (p. 388) it was immaterial *230whether the grantee or the third party took the sheriff’s deed; there was in equity an eviction, the defendant was dispossessed under a title paramount to his own, and there was a failure of the consideration of the bond. This proposition was said to be authorized by the case of Hunt v. Amidon (4 Hill, 345). There the plaintiff, being entitled to the benefit of a covenant of the defendant for quiet enjoyment, brought an action in assumpsit to recover of defendant the amount paid by plaintiff upon his purchasing the premises upon a foreclosure sale of a prior mortgage. It was held the plaintiff could recover. In Waldron v. McCarty (3 Johns., ,471) the action was of covenant and the declaration set out a covenant of defendant for quiet enjoyment, the existence and foreclosure of a prior mortgage and a sale, and that the plaintiff was obliged to purchase the premises in order to prevent his being deprived and ousted of them. On demurrer the declaration was held bad as not containing an allegation of entry and expulsion or some actual disturbance in the possession, it being stated that the action in that form would not lie; but whether in some other form or count it would not lie it was not decided. This case and many subsequent ones apparently approving it are relied on by the plaintiff’s counsel in the case before us as establishing the proposition that there was not such an eviction of the defendants as will make their defense available. If the "Waldron case is claimed to be authority against the idea of a constructive eviction properly plead, it certainly would not be followed at this day. In Shattuck v. Lamb (65 N. Y., 500) a party was allowed to recover though never in possession, it being said that if the covenantee is kept out by means of a superior title this is equivalent to an eviction. There need be no eviction by process of law but a covenantee may voluntarily surrender possession to one having paramount title and then maintain his action for breach of covenant. (Shattuck v. Lamb, supra, p. 505 and cases cited.) So it has been held that when the title under which a mortgagor held has been extinguished, so that he may be legally evicted, he may then either attorn to the holder of the paramount title or surrender possession to him on demand and defend against his mortgage without actual eviction. (Curtiss v. Bush, 39 Barb., 664, and cases cited.) In Rawle on Covenants (4th ed., 158, et seq.), the rule is laid down and *231supported by many cases, that a constructive eviction exists where the covenantee has compulsorily purchased or taken a lease under the paramount title without any actual change of possession. (See Brown v. Dickerson, 2 Jones [12 Penn. St.], 372; Whitney v. Dinsmore, 6 Cush., 124; Loomis v. Bedel, 11 N. H., 74.)


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 <mask> and constructive eviction. 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.


As the trial court noted, the notice does cite to several different covenants in the lease agreement, including Covenants 3(A), 5(C), 6(A), (B), (F), and (G), and 15(A) and (B). Covenants 3(A), 5(C), and 6(A), (B), (F) and (G) simply require the tenant to meet certain income requirements and comply with the federal subsidy certification process in a timely manner. Covenant 15(A) grants the landlord the power to terminate the lease under certain conditions, including actions by the tenant which disrupt the livability of the project by a direct threat to the health and safety of any person, or the right of any person to the <mask> of the Premises. Covenant 15(B) defines "material noncompliance" with the lease to include nonpayment or repeated late payment of rent, or use or sale of an illegal controlled substance on the premises by the tenant or a member of the tenant's household.


*410Involved in this proceeding are two separately pleaded counterclaims. The first contains two subdivisions; one in paragragh 17 of the answer, the other in paragraph 18. The first subdivision claims damages for alleged destruction of personal property due to water leakage resulting from landlord’s alleged failure to make repairs; the second seeks damages resulting from “inhabitable cold” [sic]. The second pleaded counterclaim concerns damages due to an alleged breach of the covenant of <mask>.


“An implied covenant, or an express covenant * * * for <mask>, in effect is an agreement on the part of a landlord that for the period of the demised term the tenant shall not be disturbed in his quiet enjoyment of the demised premises by any wrongful act of the landlord * # * or by the enforcement of any title superior to that of the landlord.” (Rasch, N. Y. Landlord and Tenant, § 890). “As a general rule, an eviction, actual or constructive, is necessary to constitute a breach of a covenant for quiet enjoyment.” (Rasch, N. Y. Landlord and Tenant, § 893; Sears Roebuck & Co. v. 9 Ave. 31-St. Corp., 274 N. Y. 388, 398; McQuade v. Carvel Stores of Penn., 8 Misc 2d 659; Mouse of Chan v. Dyckman, 14 Misc 2d 595). When breach of this covenant is alleged as a defense to a rent action, or used as a basis for a damage claim, it is the act of the landlord which must preclude the tenant from beneficial enjoyment of his leasehold. (Barash v. Pennsylvania Term. Real Estate Corp., 26 N Y 2d 77; Hornstein *108Co. v. Columbia Pictures Corp., 4 N Y 2d 117; Diehl v. Watson, 89 App. Div. 445; Self Serv. Furniture Fair v. 450 Realty Corp., 114 N. Y. S. 2d 774.)


After trial and due consideration of all admissible evidence, the court finds and decides in fact and law, there was a constructive eviction by landlord of this tenant under the subject facts and circumstances. Here, landlord failed, as required under the lease, to soundproof the common wall until this tenant (a psychotherapist-psychologist and certified social worker, with a legally recognized confidential and privileged patient relationship [CPLR 4507, 4508] and known to this landlord under the lease) repeatedly complained to landlord, who did not commence soundproofing until this tenant either notified landlord of her abandonment or actually abandoned (for a higher rental) and landlord assented or permitted the noises of the neighboring tenant, to whom landlord ultimately rented this tenant’s abandoned office. The court finds this was a material, substantial and effectual deprivation and wrongful disturbance by landlord of this psychotherapist’s beneficial and professionally necessary <mask> of the demised premises calculated to and necessitating this tenant’s total abandonment of possession. (Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77, 82-84; Dave Herstein Co. v Columbia Pictures Corp., 4 NY2d 117; Finkelstein v Levinson, 74 Misc 2d 105; Rasch, supra, § 920 et seq.)


The cases cited by petitioner do not apply in this case, and they are, in the main, decisions before the amendment of said section of the Code. Mor does the defendant dispute the title of the petitioner by the evidence. In the alleged lease it is specifically agreed that she does not covenant as to “ title or <mask>.”


The fulcrum issue is whether there was constructive eviction (since generally necessary to establish breach of covenant of <mask> — Rasch, Landlord and Tenant [2d ed], § 893). If so, such justifies, per se, tenant’s total abandonment (and renders moot all other secondary issues, i.e., landlord’s reasonable attorneys’ fees and mitigation of damages), a disputed question of fact for the court in this nonjury action. (Rasch, supra, § 930; Leider v 80 William St. Co., 22 AD2d 952; Read v Levy, 101 Misc 547; Lathers v Coates, 18 Misc 231.)


Actually, all that was accomplished by the assignment herein at best was an attempt to assign the rents for the business spaces occupied by tenants. Accordingly, I find the assignment to be of no force and effect and that petitioner had no authority to commence summary proceedings herein. To paraphrase the case of Mitchell v. McClellan (193 Misc. 116) there certainly has not been a grant of those premises as such. Lefcourt necessarily remained as the only one who could give quiet and peaceable enjoyment to the tenants. It alone could operate the elevators, furnish the heating, take care of the plumbing as it was required to do under the lease and by the rent laws (L. 1945, ch. 314, §§ 2, 6, 7, as amd.) and so for all practical purposes Lefcourt remained landlord. Since it is Lefcourt that owes the duties of <mask> and warranty the tenant should owe rent, the equivalent of a tenant’s services, only to Lefcourt. It is quite beside the point to ask whether in the absence of the emergency rent laws petitioner would be entitled to the rent despite its inability to discharge the duties of landlord. We are not dealing with such a case and in view of the great risk to tenants whose possession it was the objective of the emergency laws to secure, we should confer upon the petitioner the rights of a landlord including the right to rent only when it has, in fact not merely through a form of legal phraseology, assumed the *214status of landlord. Petitioner cannot assume that status and cannot ask to be considered landlord only for the narrow purpose of collecting rents.


“Here, Supreme Court inconsistently ruled that plaintiff’s lost profits were both consequential damages that could not be awarded for breach of <mask>, because the sublease excluded the recovery of consequential damages, and direct damages that could be awarded for breach of the parking requirement. In our view, however, plaintiff’s direct damages are the actual rental value of the *214parking spaces lost due to defendant’s breach, and they must be proven by expert testimony as to the portion of the rent allocable to those spaces (see 487 Elmwood v Hassett, supra at 289). Lost profits, even if shown to be foreseeable and caused by defendant’s breach, are an item of consequential damages as to both of the breaches shown by plaintiff and, thus, are excluded by the terms of the sublease (see Scott v Palermo, 233 AD2d 869, 870 [1996]).” Based upon the above, this court rules that all consequential damages are excluded by paragraph 7.03 of the lease, which excludes respondent from showing any losses except for general (direct) damages by expert testimony.


The second cause of action, for breach of the covenant of <mask>, is not maintainable, however, since there has been no abandonment of the premises and there is no covenant by the landlord to perform specific repairs (Herstein Co. v. Columbia Pictures Corp., 4 N Y 2d 117, 121). In any event, damages for such a breach would be the difference between the rent reserved and the rental value of the premises in their present state (Thomas-Houston Elec. Co. v. Durant Land Improvement Co., 144 N. Y. 34), and there is a complete absence of proof on that score.


The contention of the learned counsel for the appellant is that by the release the defendant is estopped from claiming title under that deed; and -although the jury have found that the plaintiff had no title under the deed to her, yet she as one of the heirs-at-law of the testator was entitled as tenant in common to recover her share in the land. It is difficult to see how 'the defendant’s title taken by that deed to her was affected by the settlement and release referred to< It did not, by its terms, release any interest in the premises, and no-greater effect can be given to it than its purpose, ascertained by its terms, fairly justifies. The testator made to her a deed importing a conveyance of the land to the defendant, and in addition, as protection to the grantee, inserted a covenant of <mask>. The-conveyance of the title did not depend upon the covenant, that afforded a mere right to the grantee to require him to reimburse her, if by reason of a defect in the title she should be disturbed in her possession by some party having the better title. It was a mere personal obligation assumed by the grantor, which was of no value if her title was perfect. If by an arrangement with her grantor he had obtained a release of her from the effect of that covenant and paid her for it, that would not restore the title to him or affect h§r interest in the premises, but would merely relieve him from his covenant of indemnity.


Petitioner’s motion to dismiss the counterclaim alleging breach of implied covenant of <mask> is granted. The gravamen of this claim is landlord’s failure to furnish heat during the winter months. However, respondent fails to allege abandonment which is an essential element of the cause of action (Bliss v Clark, 104 Misc 543; CPLR 3013), and consequently the counterclaim is not sufficiently stated.


Geovee, J., in Edgerton v. Page, 20 N. Y., at page 286, says: “ Unless the acts of the defendant amount to a breach of the contract of letting they are not connected with the subject of the action. In the case of the Mayor of New York v. Mabie, 3 Kern. 151, it was held by this court that a covenant for <mask> by the lessor was implied in a lease under seal for a term not exceeding three years since, as well as before, the Revised Statutes; that this covenant was broken by an interference with possession by the lessor under a claim of right; consequently, that damages sustained from such acts might be recovered in an action for rent.” See, also, Cook v. Soule, 56 N. Y. 422; Code Civ. Proc. § 501.


"When a lessor covenants for <mask>, he is bound to take such measures in relation to the mortgage as will enable him to accomplish the purpose of his covenant. His promise survives his divestment of title * * * he will not be allowed to abandon the obligations which he has assumed” (Ganz v Clark, 252 NY 92, 96).


“As a general rule, an eviction, actual or constructive, is necessary to constitute a breach of a covenant for <mask>. * * * In other words, there must be an ouster, or a justified abandonment ” (Rasch, Landlord & Tenant [2d ed.], § 893). The record herein is devoid of a showing of actual or constructive eviction. The counterclaim also cannot be sustained on the theory of negligence. Even assuming negligence on petitioner’s part, there is no evidence indicating that it was the proximate cause of the loss. V The rule is well-settled that where there are several possible causes of injury, for one or more of which defendant is not responsible, plaintiff cannot recover without proving that the injury was sustained wholly or in part by a cause for which defendant was responsible. If the matter is left in doubt, and it is just as probable that the accident was the result of one cause as the other, there is no *1091liability. In these circumstances a verdict holding defendant answerable to plaintiff would be based upon mere speculation ’ ’ (1 Warren’s Negligence, ch. 5, §§ 5.01, 5.10, pp. 130-131).


The very basis of the settlement in this case was the lease. It was this very lease which was surrendered by the defendant and accepted by the landlord. The June, 1956 rent accrued on June 1, 1956, prior to the settlement and the execution and delivery of the releases on June 25,1956. There may have been some basis for the plaintiff’s claim if there had been a mutual mistake or a mistake on the part of the plaintiff and fraud, deceit or misrepresentation by the defendant. (Rector of St. James Church v. City of New York, 261 App. Div. 614, 617; Farrington v. Harlem Sav. Bank, 280 N. Y. 1; Gilbert v. Rothschild, 280 N. Y. 66; Kirchner v. New Home Sewing Mach. Co., 135 N. Y. 182.) I cannot find such a situation in the case at bar although the plaintiff does claim that he did not intend to release June rent and that the defendant “ concealed ” the fact that this rent had not been paid. This plaintiff is an experienced real estate operator and the defendant is not in such relationship to him as would require any disclosures. The defendant received a demand for rent and refused to pay it because the landlord violated the clause in the lease granting <mask>. He was under no obligation to inform the plaintiff and nondisclosure under such circumstances is not misrepresentation, deceit or *151fraud. (Matter of Ohrbach, 4 Misc 2d 964, 969; Matter of Schoenewerg, 277 N. Y. 424, 428.) In the Ohrbach case (supra, p. 969) the court stated that, “ one may not escape on the ground of mistake the consequences of a deliberate signing of a release when simple inquiry would have elicited the information needed. In either event, then, whether she and her attorney knew the facts, or, being ignorant thereof, had her execute a release completely unconcerned about any claim she might have, she is barred from objecting to the account.”


The defendant Cohen is not entitled to judgment on his cross claim. He has proved neither legally sufficient conspiracy, nor damages by reason of the breach of the covenant of <mask>. He remains in possession. He has not been evicted Metropolitan Life Ins. Co. v Childs Co., supra; Knickerbocker Oil Corp. v Richfield Oil Corp. of N. Y. 234 App Div 199, affd 259 NY 657). The cross claim is dismissed.


Final judgment reversed, with $30 costs, and final judgment directed in favor of landlord as prayed for in the petition, with costs, five-day stay; and counterclaim dismissed. In this summary proceeding for nonpayment of rent for January, 1972, in the sum of $100, respondent tenant interposed a counterclaim for $209.05 alleging breach of warranty of fitness and <mask>. At trial the petitioner’s prima facie case was conceded and the issue of jurisdiction withdrawn. Essentially respondent’s testimony is that she gave a duplicate set of keys to the landlord’s agent so that repairs could be effected at the subject apartment, that the keys were never returned, and that subsequently she discovered that a TV set was missing from the premises. Respondent was awarded the full purchase price for the TV, purchased by her some four years prior to these circumstances.


‘ ‘ A covenant of <mask> will be implied in oral leases. It results from the mere relation of the parties * * * . [citations] ” (Fifth Ave. Bldg. Co. v. Kernochan, supra, p. 376). The tenant having paid the rent for the month of September in advance, was entitled to quiet enjoyment of the premises the entire month. The landlord breached this covenant by his act and the tenant’s damages resulting therefrom are one half of the month’s rent paid in advance. The October rent, he did not pay and will not be required to pay.


On May 5, 2015 Sierra Palms filed its original complaint against Metro and Foothill Transit alleging against each of them causes of action for negligence, inverse condemnation and nuisance (private and public).1 The gravamen of each claim was that these entities had constructed and/or maintained the Gold Line railway in a manner that interfered with the condominium owners' <mask> of their property and caused property damage, including damage to the condominium complex's block boundary wall, in a manner that, among other things, resulted in a government taking of property without just compensation.


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 constructive eviction and a breach of the covenant of <mask> (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.


The pleaded claims in the operative first amended complaint are for: (1) tortious breach of the implied warranty of habitability (§ 1941); (2) contractual breach of the implied warranty of habitability (§ 1941); (3) violation of section 1942.4; (4) breach of contract (§ 3300 et seq.); (5) breach of <mask> (§ 1927); (6) private nuisance (§ 3501 et seq.); (7) premises liability (§ 1714); (8) retaliation in violation of section 1942.5, subdivision (d) ; (9) negligence; (10) violation of the Oakland Just Cause Ordinance (Oakland Mun. Code, § 8.22.300 et seq.); (11) violation of the Oakland Tenant Protection Ordinance (Oakland Mun. Code, § 8.22.600 et seq.); (12) constructive eviction-negligence; (13) unfair business practices (Bus. & Prof. Code, §§ 17200 et seq., 17500 ); (14) fraud; and (15) retaliatory eviction.


In Doyle v. Allstate Ins. Co. (1 N Y 2d 439) the carrier undertook “ To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury * * * and as damages because of injury or destruction of property, including the loss of use thereof.” The policy also provided, as in the instant case, that the insurer would ‘ ‘ defend any suit against the insured alleging such injury * * * even if such suit is groundless, false or fraudulent ”. An action was brought against the insured to enjoin him from operating a kennel for dogs. The complaint alleged that the continual barking of the dogs destroyed the peaceful and <mask> of the neighbors’ property and further alleged: “ 5. That by reason of said nuisance maintained and operated by the defendant as hereinbefore set forth, the value of plaintiffs’ property has been impaired and the health of plaintiffs has been injured. ’ ’ The prayer for relief was for an injunction and there was no demand for damages. The insurer refused to defend and the insured instituted suit to recover the amount expended for legal fees and expenses in defense of the original action. Cross motions were made for summary judg*489ment; Special,Term denied the insured’s motion and granted the insurer’s motion upon the ground that the insurer undertook to defend only actions wherein money damages were sought against the insured and that damages could not have been awarded in the original action. The Appellate Division (1 A D 2d 738) unanimously affirmed. In reversing, the Court of Appeals said (pp. 442-444).:


The defendants breached their warranty of <mask> by willfully failing to rent plaintiff a legal apartment in compliance with the NYCRR and Y.F. & B.C. (see, e.g., 74 NY Jur 2d, Landlord and Tenant, §§ 250, 260, 266; see also, Various Tenants of 155 E. 52nd St. v GSL Enters., supra; Roli-Blue, Inc. v 69/70th St. Assocs., supra). As a consequence of defendants’ failure to follow applicable regulations the Yonkers BHB declared the cellar apartment illegal and ordered that the cellar apartment be vacated. The action of the Yonkers BHB was caused solely by defendants’ failure to meet the requirements of the C.O. and the NYCRR and Y.F. & B.C. (see, e.g., Al’s 334 9th Ave. Corp. v Herbener, 83 NYS2d 676 *490[Sup Ct 1948] [landlord liable for damages arising from eviction of tenant by municipality and breach of covenant of quiet enjoyment; landlord failed to follow applicable regulations and make building safe]). The defendants are liable for all appropriate damages flowing from their breach of warranty of quiet enjoyment.


The complaint alleges in substance that plaintiffs are the owners of real property in Greene County; that the defendant has entered upon their lands without their consents or permission and has performed certain activities thereon which have interfered with the <mask> and use of said lands, and have interrupted and impaired plaintiffs’ possession of their real property. It is further alleged that damage and injury has been caused by the defendant to the lands of the plaintiffs. They seek a judgment declaring the entries by defendant upon plaintiffs ’ lands to be illegaltrespasses, and beyond the powers granted to defendant under the Public Authorities Law, and if found to be authorized by statute, then such statute be declared unconstitutional in that it provides for taking of private property for public use without just compensation therefor. Plaintiffs also seek to enjoin defendant from entering upon and conducting activities on their lands, unless and until defendant obtains rights to enter and conduct such activities by condemnation or otherwise.


The learned counsel for the defendants calls the court’s atten*89tion to the case of House v. McCormick 57 N. Y. 310, which holds that, where a deed contains express covenants of warranty or <mask>, it operates as an estoppel against a claim of the grantor or his privies to a subsequently acquired estate, as well, where the grantor had a present right or interest which passed at the time of the grant, as when nothing whatever passed. An examination of that case and of the principle therein decided will show that the case is not controlling of the, question here under consideration. In that case, the grant was absolute and of the entire estate, while, in this case, the grant from John Moon was really subject to the mortgage in question. The grant expressly states that the mortgage is a valid lien, and the grantee takes the premises, subject to that lien, and the covenant for peaceable possession c'annot be extended to or applied as to that mortgage; in other words, that covenant is subject to the mortgage and to the remedies to enforce it.


In this case, plaintiff Salima Multani (Salima1 ), who operated a medical clinic in a space she leased from defendant Evelyn Knight, brought claims against Knight for conversion, breach of the covenant of <mask>, nuisance, negligent maintenance of property and/or strict liability (negligence/strict liability), negligent interference with contract relations (contract interference), and violations of Business and Professions Code section 17200 ( section 17200 ). The trial court granted Knight's motion for summary adjudication as to all of the claims except the contract interference claim, finding that Salima was not lawfully on the premises when the alleged sewage spill occurred. The contract interference claim went to trial before a jury, and the jury found in favor of Knight, finding that the alleged contractual or economic relationship did not exist.


Defendant's gross negligence in removing the roof of the building while plaintiff was in possession and destroying plaintiff's property and improvements in the leased premises constitutes a breach of the covenant of <mask> and entitles plaintiff to indemnification for its losses under the lease (see 87 Chambers, LLC v 77 Reade, LLC, 114 AD3d 525 [1st Dept 2014]). The award of $125,000 is supported by the testimony of plaintiff's principal as to the amount plaintiff invested in renovating the space to operate the restaurant, which was uncontroverted by any evidence submitted by defendant (see Dinicu v Groff Studios Corp., 257 AD2d 218, 224 [1st Dept 1999]; Wathne Imports, Ltd. v PRL USA, Inc., 101 AD3d 83, 88-89 [1st Dept 2012]).


The covenant of <mask> is not broken by the landlord’s neglecting or refusing to keep the premises in repair. The letting implies no obligation by him that the premises shall be or shall continue fit for the use for which the tenant designed them (Howard agt. Doolittle, supra), or even that they are or shall be tenantable (Cleves agt. Willoughby, 7 Hill, 83 ; Sherwood agt. Seaman, 2 Bosw., 127; Post agt. Vetter, 2 E. D. Smith, 284).


A lawful eviction or disturbance of possession must be shown to support an action on such a covenant (St. John v. Palmer, 5 Hill, 599 ; Greenvault v. Davis, 4 id., 643), though it is enough if the grantee voluntarily yields possession to one having a paramount. *476title; but the grantee then assumes the burden of proving that tbe title was paramount. There cannot be a constructive eviction without abandonment of possession. (Boreel v. Lawton, 90 N. Y., 293; Edgerton v. Page, 20 id., 281). There is an actual eviction when the grantee is dispossessed by process of law. There is a constructive eviction when he yields possession to a title which is actually paramount. There is neither actual nor constructive eviction while he continues in possession. And without an eviction, actual or constructive, there can be no recovery on a covenant of warranty or of <mask>. There lies the distinction between those covenants and a covenant against incumbrances. ¥e are referred to no case where a plaintiff has recovered on a covenant of warranty or of quiet enjoyment, merely on the fact that he has redeemed the premises by the payment of money. That is all that the defendant did. No one ever had an indefeasible and paramount title to this land, because there was a six months’ right to redeem. The expression in section 63 (chap. 427 of 1855), .that the conveyance shall vest in the grantee an absolute estate in fee simple cannot prevent us from recognizing the right to redeem given by section 68, in the case of occupied lands, and the further provision of section 73, that on proof of service of notice, etc., the conveyance shall thereupon become absolute.


At the outset the first three defenses are dismissed as insufficient at law. Constructive eviction is not available to tenant because he still occupies the demised premises. (See City of New York v. Pike Realty Corp., 247 N. Y. 245, 247.) Section 756 of the Real Property Actions and Proceedings Law is not available, because said section involves the discontinuance of “ utilities * ' * * because of the failure of the landlord *375* # * to pay for utilities for which he may have contracted ’ ’ and there is no proof in the instant case of any discontinuance of utilities because of such nonpayment. The defense of breach of covenant of <mask> will not be considered because such a contention is involved with the subject matter of the counterclaims, which have been severed. Consequently, the court will proceed to a consideration of the remaining defense of partial actual eviction.


In summary, California case law has recognized a tort cause of action for wrongful eviction, including breaches of the covenant of <mask> that compel a tenant to vacate, whereas breach of covenant of quiet enjoyment that does not result *815in a wrongful constructive or actual eviction is a breach of contract. ( Ginsberg, supra , 205 Cal.App.4th at pp. 898-902, 141 Cal.Rptr.3d 62.)


The rule of law applicable to the facts before this court was stated in Mead v. Stackpole (40 Hun, 473, at p. 476): “ There cannot be a constructive eviction without abandonment of possession. * * * There is an actual eviction when the grantee is dispossessed by process of law. There is a constructive eviction when he yields possession to a title which is actually paramount. There is neither actual nor constructive eviction while he continues in possession. And without an eviction, actual or constructive, there can be no recovery on a covenant of warranty or of <mask>.” (Stanton v. Conley, 244 App. Div. 84.)


The answer goes further; it alleges 'that he, J. H. Bell, at that time told the complainant that he could not give him any other paper than a release, or quit-claim, of his right and title under the contract with the Hollisters; that he had not then the legal title to the premises, and only held said contract of sale; and that he would not then make a legal title. That the complainant said he would be satisfied with any thing that Bell could or would choose to give him, as an evidence that he had any title whatsoever in the premises; and that as he was in' a hurry and going to Europe, he had not time to attend to it, *545and would authorize Mr. Dutilh to give Bell a bond and mortgage for the balance of the purchase money; that Bell then completed the purchase with the complainant by executing and delivering to him the deed, and received the bond and mortgage executed by the complainant by his said attorney, to secure the payment of $4,000, the balance of the purchase money. It is said that this statement is not credible ; but it is responsive to the bill, and entitled to be credited as true, unless there is competent evidence in the case to show it false. What evidence of that -character is there in the case 1 There is not the evidence of any witness on the subject, substantially; all the facts in that respect stated in the answer, except that which relates to the conversation alleged to have taken place in relation to Bell’s title, and his ability to convey a valid title, is admitted. It is said that the giving of a deed by Bell, with a covenant of warranty for <mask>, is a declaration that he was the owner in fee simple absolute. I do not see that why may it not as well be taken as showing that the complainant reposed full confidence in Bell’s ability, at some future day, to complete his title to the land under his contract with the Hollisters, and a reliance upon his integrity, as well as pecu-' niary interest, so to do, by which, the title would enure to his benefit, and thereby save any breach of his covenant which might otherwise thereafter occur; and if he failed thus to complete his title, he could safely fall back upon the covenant of warranty, and obtain ample redress; and that Bell, fully believing that he could and should thereafter complete his title, did not hesitate to give such deed. But again, it is said, if Bell had given the complainant such information in regard to his interest as stated in the answer, and intended honestly to transfer to him such right as he had, he would have executed an assignment of the contract which he held for the lots, leaving the complainant to fulfil the unpaid purchase money on the Hollisters, and taken his personal obligation for the residue of the $4,000.


Winter went into possession of the lot, and held as owner, until May, 1805, when in consideration of two thousand six hundred and sixty dollars, he bargained, sold and conveyed the same to Samuel' Boyd, in fee simple, with covenants of seisin, *667warranty of title, for <mask> and farther assurance. Boyd thereupon took possession and expended large sums of money in the reparation and improvement of said premises. In 1806, Boyd sold and conveyed said lot to Josepn Otis, in fee, with covenants of seisin, warranty and for quiet enjoyment; and in 1810, the same title, through sundry mesne conveyances, was transfered to Richard Yarick, who thereupon took and held peaceable and undisturbed possession of the lot, until 1822, during which time, he expended several thousand dollars in making permanent improvements upon it.


(2) Habitable and usable: This branch concerns dwellings which are fit for human habitation and the existence of “those essential functions which a [dwelling] is expected to provide” (supra, p 328). The covenant of <mask>, upon which the theory of constructive eviction is based, “include [s] a duty to refrain from any act or omission which would render the premises unusable by the tenant” (supra, p 323). These two latter concepts are clearly encompassed by this branch of the warranty.


Although there cannot be a constructive eviction without a surrender of possession by the tenant in an action for damages for breach of the covenant for <mask> (1 Rasch, Landlord and Tenant and Summary Proceedings 710, § 876) a surrender of possession by the tenant is not necessary to invoke the sanction of section 755 of the Real Property Actions and Proceedings Law. (See Matter of Emray v. De Stefano, 5 Misc 2d 352.)


The tenants appearing by the same attorneys interposed three defenses, but. at the hearing two of them were withdrawn and the' only defense relied upon is defense of uninhabitability and *719section 755 of the Real Property Actions and Proceedings Law, as set forth in paragraph 2 of the answer, in that the premises are not habitable because the petitioner knew or should have known for a long time prior to the commencement of these proceedings that its premises were and are being used for immoral purposes, thus interfering greatly with the <mask> of the premises by the respondents.


Although the verdict forms combined breach of contract and breach of the covenant of <mask> under the single heading: "BREACH OF CONTRACT/BREACH OF THE COVENANT OF QUIET ENJOYMENT," the forms also treated the two theories as being separate. The forms first asked the jury whether defendants breached their contract with the plaintiff or plaintiffs identified on the form. If the jury answered "yes," they were directed to answer the question whether defendants breached the covenant of quiet enjoyment with the plaintiff or plaintiffs. If they answered "no" to the first question (finding no breach of contract), they were directed to go to the first question under the next cause of action (negligence/negligence per se) and not decide whether defendants breached the covenant of quiet enjoyment. Only if the jury found the defendants breached both their contract with the plaintiffs and the covenant of quiet enjoyment was the jury directed to answer the question, "Was DEFENDANTS' breach of contract or breach of the covenant of quiet enjoyment a substantial factor in causing harm to [the plaintiff]?" If the jury answered "yes" to whether defendants breached their contract with plaintiffs but answered "no" to whether defendants beached the covenant of quiet enjoyment with plaintiffs, it was directed to go to the next theory or cause of action. As to each of the 16 plaintiffs, the jury found defendants liable for both breach of contract and breach of the covenant of quiet enjoyment.


Implicit in the lease agreement between the plaintiff and defendant was a covenant of <mask> 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 constructive eviction (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]).