Specifically, respondent’s claim for an abatement of rent is based upon three grounds, viz.: (i) the "bright light” generated *671by the illuminated awning erected by Lechters (the first floor commercial tenant directly below respondent’s apartment) interfered with respondent’s <mask> of the apartment, (ii) Lechters’ renovation process of the street level premises included unauthorized and disruptive activities, and (iii) security lights placed by petitioner on a sidewalk bridge erected during Lechters’ renovation shone intermittently into respondent’s apartment.


Further, it is plain that the plaintiffs have not paid the proprietary rent (or maintenance) for the apartment. The covenant of <mask> clearly does not become effective unless *578the tenants ¡have paid the rent and complied with the other conditions of the 'lease. Payment of rent is a condition precedent to the maintenance of the action for breach of the covenant of quiet enjoyment. (Herstein Co. v. Columbia Pictures Corp., supra, p. 121; Baitzel v. Rhinelander, 179 App. Div. 735.) Plaintiffs claim to have been paying the money in escrow. As a result of nonpayment to the landlord, summary proceedings have been brought against them for eviction, but those proceedings have been stayed by order of this court. Defendant corporation may move for removal of the summary proceedings from the Civil Court and consolidation with this action. Upon consolidation, the court will entertain an application for an order vacating the stay heretofore granted and directing the payment of all rent due by the plaintiffs. It would be manifestly unfair, even while this controversy remained pending, to permit the plaintiffs to continue to reside in the premises without bearing their fair share of the maintenance expenses which have to be shouldered by the remaining tenants. In any event, the fifth cause of action, which seeks recovery for the breach of covenant of quiet enjoyment resulting in ‘ ‘ physical discomfort, annoyance, inconvenience and emotional distress ”, cannot be maintained. In actions predicated upon breach of contract, where the breach does not amount to a willful or independent tort, and where mental anguish, inconvenience or annoyance are the damages alleged as a result of the contractual breach, the cause of action may not stand. (Frank v. Justine Caterers, 271 App. Div. 980. See Williston, Contracts [3d ed.], § 1341.)


The plaintiff’s motion for new trial was denied and judgment entered on the verdict. The plaintiff appeals. It appears that both the plaintiff and the defendant Emily N. Rugg claimed title to the premises, under deeds alleged to have been made by one Jonathan G. Rugg to them respectively; that the plaintiff was his daughter, and the defendant Carlos A. Rugg was his son, and husband of defendant Emily; 'that after plaintiff had táken possession under the judgment in her favor, the defendant Emily brought an action upon the covenants in the deed to her against.the executors of the will of Jonathan G. Rugg, who died intestate in 1811. The plaintiff in that action alleged the conveyance to her, with covenants of <mask>, etc., ankd that she had been ejected by title paramount. The executors by their answer denied that the plaintiff Ann M. Dawley had any title to the premises at the time of the conveyance to the defendant Emily M. Rugg, and that the latter took the title by the deed of Jonathan G. Rugg to her. That action came on to trial and during its progress was settled by the parties to it and discontinued. The terms of the settlement appear in a release under seal, made by her to the executors, which purports to be an instrument made between her of the first part and tlie executors and all the heirs-at-law of Jonathan G. Rugg, deceased, of the second part, and after the recital of the fact of the execution and delivery by the testator of the deed to her, with covenant *145of warranty, and the purpose of the action, there follows. “ Now, in consideration of the settlement of said action and certain moneys paid by said executors to said Emily N. Rugg, the said Emily N. Rugg does hereby release to said executors, and to all the heirs-at-law of said deceased, all her cause of action on said covenant of' warranty, or any covenants in said deed, and all claims or right of action on said covenants against said executors or the heirs-at-law of said deceased grantor.” The amount paid to her by the executors on such settlement was $500. After this she obtained the order vacating the judgment in this action and granting a new trial as before mentioned. The plaintiff then put in a supplemental complaint, setting forth the facts of that action and the settlement and release, and on the trial she proved all those facts and her judgment entered on the first verdict. She also gave evidence tending to prove, that on or about the 27th day of May, 1875, the testator and his wife executed and delivered to her a deed of "the premises, which was not recorded; that the grantor, after its delivery, borrowed the deed of her and destroyed it without her knowledge or consent; that before the defendants had or claimed any title to" the premises, they were advised of the plaintiffs’ claim-of title, and that she gave her father a life lease of the premises at the time she claimed to have taken the deed. And it appeared that she was the daughter of the testator and that she had one sister and three brothers at the time this action was commenced. The defendants gave evidence tending to prove that the deed claimed by plaintiff to have been delivered by her father to her was never, in fact, delivered, but before delivery was destroyed with her consent. The defendant Emily N. Rugg read in evidence a warranty deed of the premises made by Jonathan G. Rugg to her of date July 6, 1876, and recorded in the proper clerk’s office, September 21, 1876.


In the case at bar, although the foregoing descriptive evi*145dence was not found at respondent’s premises, the absence of such direct proof should not reduce the credible testimony of petitioner’s six witnesses who are all residents of the same building and who live in close proximity to respondent’s apartment. Building residents and their families should not be disturbed or live in fear while pursuing their rights as law abiding tenants to the peaceful and <mask> of their homes. They should be free from the serious, questionable activities in respondent’s apartment which continue to have a stringent and unfavorable impact on their daily lives.


*565It is contended by tbe appellant’s counsel • that tbe substance of Harter’s agreement was merely that the plaintiff should have <mask>, and that until ousted, there was no breach. The agreement was more than that. It was to do certain specific acts, to wit, to purchase the outstanding mortgages, and hold them until the expiration of the plaintiff’s term. On the failure of the intestate to do either of those things, his agreement was broken. The difference between mere covenants of quiet enjoyment and covenants to do some specific acts, the object of which is to secure the possession of the covenantee, is recognized by numerous decisions. In the former class there is no breach till actual eviction. (Waldron v. McCarty, 3 Johns., 472; Kortz v. Carpenter, 5 id., 121; Sedgwick v. Hollenback, 7 id., 376; Kemball v. Van Slyke , 8 id., 487; Kerr v. Shaw, 13 id., 236.) In the latter class failure to do the specific thing stipulated for, gives a right of action, even though the possession be not disturbed. (Juliand v. Burgott, 11 Johns., 477; Thomas v. Allen, 1 Hill, 145; Gilbert v. Wiman, 1 N. Y., 550; Rector, etc., of Trinity Church v. Higgins, 48 id, 532.) The present case has been before this court on a former appeal, and on that occasion it was held, in effect, that the agreement of Harter was broken by his failure to purchase all four of the mortgages, so that the plaintiff had a perfect cause of action, and a judgment of nonsuit which had been theretofore ordered was set aside and a new trial ordered. (MS. op. of Gilbert, J.) This brings us to the question, what is the proper measure of recovery ? Nominal damages, or the value of the unexpired portion of the term ? I think the latter. The term of the lease was subject to the outstanding mortgages, and their amount largely exceeds its value. A foreclosure and sale under them would have deprived the lessee of her entire interest. To secure to her that interest was the purpose of the arrangement. The object* was not to indemnify her in case of an eviction, but to prevent the possibility of an eviction, and to make her term worth to her what it would have been worth if the mortgages had not been in existence. The extent of the probable loss of value by reason of the existence of the incumbrances is the measure of damages, even though the lessee paid nothing on account of the incumbrances, and was not disturbed in her possession. These views are sustained by authority. In Port *566v. Jackson (11 Johns., 239), tbe plaintiff, wbo was tbe assignee of a lease for a term of years, bad assigned tbe same to tbe defendant, and tbe latter bad covenanted to perform all tbe covenants, etc., to be performed by the plaintiff, among which was a covenant, to pay tbe rent as it should accrue upon tbe lease. Tbe action was covenant to recover tbe amount of rent alleged to be due to B., tbe plaintiff’s assignee, for about twenty-four years. Defendant pleaded that before any rent became due, be assigned tbe term to GL, wbo entered and was accepted by B. as bis tenant. Held, on demurrer, that tbe plea was bad; that tbe defendant’s covenant was express to pay tbe rent, etc., for which tbe plaintiff remained liable on bis covenant to B. by privity of contract, notwithstanding tbe assignment by tbe defendant to Q-. and tbe acceptance of him by B. as bis tenant; that tbe defendant’s covenant was broken by tbe non-payment of tbe rent, and tbe plaintiff was entitled to recover tbe whole rent in arrear, for which be was bable on bis covenant with B., though be bad paid nothing, and bad not been damnified. In Gilbert v. Wiman (supra), it was said by Pratt, J., in tbe Supreme Court, after stating tbe rule as to strict contracts of indemnity against damages: “ But in personal contracts, where tbe instrument deviates tbe least from a simple contract to indemnify against damages, even when indemnity is tbe sole object of tbe contract, and when in consequence of tbe primary habihty of other persons, actual loss may be sustained, tbe decisions of our courts, although by no means uniform, have gradually incbned towards fixing tbe rule to be one of actual compensation for probable loss, so that in contracts of that character it may now be considered as a general rule both in this country and in England.” Although tbe decision of tbe Supreme Court in that case was not concurred in by tbe Court of Appeals, tbe rule above stated was not questioned, tbe latter court bolding that tbe obbgation sued on was one of indemnity merely. In tbe case of The Rector, etc., v. Higgins, above cited, it was held by tbe Commission of Appeals that a covenant in a lease, whereby tbe lessee agrees to bear, pay and discharge all taxes and assessments which sbab be imposed upon tbe demised premises during tbe term, is broken when tbe lessee neglects to pay a tax or assessment duly imposed. It is not simply a contract of indemnity, but by it tbe tax or assessment, as between tbe parties, *567becomes tbe debt of tbe lessee; tbe lessor, therefore, can maintain an action thereon without first paying tbe tax or assessment, and, as damages, be is. entitled to recover tbe amount of such tax or assessment. And tbe general doctrine was asserted tbat parties have tbe right to make a contract contravening tbe rule that actual compensation will only be given for actual loss, and where tbe intent so to do is expressed in apt and suitable language, courts of justice will support it. In tbat case, LeoNAbd, C., cited many other cases (p. 537) which support tbe rule of damages above suggested, to wit, compensation for tbe probable loss against which tbe parties by their agreement intended to provide. Another point deserves consideration. It seems tbat in an action by a lessee against tbe lessor, on a covenant for quiet enjoyment, to recover damages foían eviction, be can recover nothing for a rise in value of tbe use of tbe demised premises. (Kinney v. Watts, 14 Wend., 38; Kelly v. Dutch Church of Schenectady, 2 Hill, 105.) Tbe cases so bolding proceed upon tbe ground tbat tbe lessee stands upon tbe same footing as a purchaser who, in an action for a breach of a covenant for quiet enjoyment, is held to tbe price agreed upon by tbe parties as tbe true value of tbe land. By analogy, tbe rents reserved in a lease, where no other consideration is paid, are regarded as a just equivalent for tbe use of tbe demised premises; but tbat rule has not been very satisfactory to tbe courts of this country. (Mack v. Patchen, 42 N. Y., 167.) Its soundness has been questioned (Sedg. on Dam. [lsted.], 170), and we think it is not to be extended beyond this class of cases, to wit, actions between lessee and lessor, to which it has been applied. In our opinion, tbe correct measure of damages in this case is tbe value of tbe unexpired portion of tbe plaintiff’s term, less the rent reserved. (Mack v. Patchin, supra.) Tbe appellant’s counsel insists tbat tbe referee erred in admitting evidence of tbe worth of tbe use of tbe premises, be contending that tbe true mode of ascertaining tbe damages was to show tbe receipts and expenses. Tbe evidence was properly received.


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 not show an eviction total or partial, or any *126unlawful injury to the premises in violation of the contract. There is implied in the contract, being a demise or letting for a J'ear, a covenant for <mask>; (The Mayor of New-York agt. Mabie, 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, where there has been no eviction, or entry under assumption of title, (Howard agt. Doolittle, 3 Duer, 474; The Mayor of NewYork agt. Mabie, supra; Lloyd agt. Tomkies, 1 T. R. 671; Platt on Covenants, 312-320.)


Implicit in the lease agreement between the landlord and tenant was a covenant of <mask> which "is an agreement on the part of the 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 [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 (see, e.g., Minjak Co. v Randolph, supra [water damage and sandblasting; punitive damages]; Nostrand Gardens Coop. v Howard, 221 AD2d 637 [excessive noise deprived tenants of quiet enjoyment]; Yochim v McGrath, 165 Misc 2d 10 [1995]).


In their 10th cause of action for breach of the covenant of <mask> plaintiffs alleged: "Defendants have breached the covenant by failing to maintain the Park as set forth herein in paragraphs 12 and 13, by interfering with Plaintiffs' ability to sell their mobilehomes in place[,] including by raising rents to unreasonably high levels , by illegally changing the use of the Park, and by Defendants' other actions and conduct alleged in this Complaint." (Italics added.)


The purpose of the Noise Control Code is to protect citizens from the intrusion of noise caused by construction activity. (See Administrative Code, § 1403.3-1.03.) To advance this policy the respondent contends that the term “weekdays” should be construed in such a manner as to afford maximum protection to city residents during the time when most are not at work and generally expect relaxation and <mask>. It therefore urges that the most reasonable construction is one which prohibits construction on weekdays, during the hours which are not expressly permitted and on weekends, entirely. (See, generally, New York Tel. Co. v New York Transp. Admin., 44 AD2d 784.) In view of the fact that variances are available to permit construction during other time periods, and *605emergency construction is permitted without a variance (Administrative Code, § 1403.3-4.11, subd [b]) the respondent argues that the interpretation adopted by it is consistent with that intended by the drafters.


In the Ginsburg v. Woolworth Case (supra) the Appellate Division *323of the Second Department reversed a judgment of the Trial Term dismissing the complaint, and sent the case back to Special Term for the purpose of ascertainment of damages. If the claim of the defendant in this action of breach of covenant of <mask> be deemed a counterclaim, there is no basis in the evidence upon which to declare a money judgment. No actual money loss was shown. The defendant might have offered testimony to show the difference in rental value of the apartment occupied by the defendant before and after the condition described in the defendant’s testimony, but this was not done, and I do not know of any basis upon which I could render a money judgment for the defendant on its counterclaim. The counterclaim will, therefore, be dismissed, and judgment given for the plaintiffs Byrne & Bowman for the sum of $312.50, and for the plaintiff 450 West End Avenue Corporation for the sum of $412.50, with appropriate interest in each case.


Regulation 880.607 states that the only grounds upon which a section 8 new construction tenancy can be terminated are (1) material noncompliance with the lease; (2) material failure to carry out obligations under any State landlord and tenant act; or (3) other good cause (24 CFR 880.607 [b] [1]). The term material noncompliance with the lease is defined as including “(i) one or more substantial violations of the lease, or (ii) repeated minor violations of the lease which disrupt the livability of the building adversely, affect the health or safety of any person or the right of any tenant to the <mask> of the leased premises and related facilities, interfere with the management of the building or have an adverse financial effect on the building.” (24 CFR 880.607 [b] [3].)


*855The covenant of <mask>, as codified in Civil Code section 1927, arises from a lease: "An agreement to let upon hire binds the letter to secure to the hirer the quiet possession of the thing hired during the term of the hiring." ( Civ. Code, § 1927.) "Under this section, there is an implied covenant on the part of a landlord that a tenant shall have quiet enjoyment and possession of the premises during the continuation of the term ." ( Lee v. Placer Title Co. , supra , 28 Cal.App.4th at p. 512, 33 Cal.Rptr.2d 572, italics added.) In this case, the trial court found-based upon the undisputed facts that Salima stopped paying rent and failed to comply with Knight's three-day notice to pay rent or quit-that at the time of the alleged constructive eviction (i.e., when the purported sewage spill occurred in January 2012) there was no lease, and Salima was not lawfully in possession of the premises. As discussed in section A., ante , these findings were correct in light of the undisputed facts before the court. Therefore, the court properly granted summary adjudication in favor of Knight on Salima's breach of the covenant of quiet enjoyment claim.


The complaint alleges that on October 2,1972 plaintiff Robert Zamzok entered into a contract with defendants Harold and Lillian Green to purchase the Green’s co-operative apartment 2B at 650 Bark Avenue. On or about November 1, 1972 the co-operative corporation issued a new stock certificate to the Zamzoks, the Greens assigned to them their proprietary lease, and the Zamzoks took up residence in the apartment. They allege that they immediately became aware of the loud noises emanating from outside the apartment, presumably caused by the operation of an elevator for a garage located in the building, leased from the co-operative corporation and operated by the defendant Sulgrave, Inc. They allege further that the noise has continued despite numerous complaints, as a result of which the peaceful and <mask> of their dwelling has been destroyed.


In 1154 Union Ave. Corp. v. Davis (supra) the plaintiff, a subtenant, sued the tenant for damages by reason of the tenant’s failure to comply with the provision in the major lease which required the tenant (defendant) to deposit a sum of money as security with the landlord. The tenant failed to deposit said security and the plaintiff (subtenant) offered to deposit said security, but the major landlord refused to permit him to post the security. The landlord brought summary proceedings and evicted the major tenant and the plaintiff subtenant. The Appellate Division states (p. 465): “ The defendants failed to comply with the provision of the original lease with respect to the giving of security on May 30, 1923. The plaintiff sought to make good this default, but there has never been any attornment to the original landlords and they refused to accept the security from any one other than their original tenants, the defendants. * * * The original landlords were under no obligation to accept the rent or security from any one but their own tenants. If the defendants had failed to pay the rent to the original landlords they would clearly have violated the covenant of <mask> in the sublease. They similarly violated it in failing to post the security. The covenant of the sublease to comply with the terms and conditions of the original lease cannot be construed as putting on the subtenant or its assignee the obligation to do what they could not do without the landlords’ consent. No one other than the defendants could post the security without the consent of the landlords and it was their affirmative duty to post the security. Their failure so to do breached the covenant of quiet enjoyment.”


To summarize, the court finds that petitioner has failed to establish that respondent committed “(1) [o]ne or more substantial violations of the rental agreement, or (2) 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 *782the <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” (24 CFR 450.3 [c]). The petition is therefore dismissed.


Take this case for an example. The lessor in violation of his covenant with his lessee that he should quietly enjoy^ the demised premises for the full term, becomes an actor with another, and ousts his lessee from an unexpired term worth about $2,000, in such manner that trespass will not lie against him, and goes into the enjoyment of it himself. The lessee brings action upon the lessor’s covenant for <mask>. What shall he recover ? I think the true answer is found in the rule laid down upon the trial.' It was said by the counsel of the defendant, that Mr. Dorsheimer, by his purchase at the foreclosure sale, became the owner of the equal undivided half part of the demised premises ; that the plaintiff was therefore only evicted by the defendant from the one undivided half part of them, and that the defendant was at most only liable for the one-half of the value of the unexpired term. The answer to this position is found in what I have already said. It was the eviction, and not the sale under the judgment in the foreclosure action, that constituted the breach of the defendant’s covenant for quiet enjoyment. And it is the active part which the defendant took to cause the eviction of the plaintiff from the demised premises, that takes his case out of the rule of damage established for the protection of those Avho have acted in good faith, and places it under that rule Avhich gives to the lessee the damages Ávhich he has suffered, propter ipsam rem non habitam. I do not see how a case can be partly under one rule and partly under the other. The conduct of the defendant must place it entirely Avithin one of the rules.


The condominium located at 1800 Second Street, part of the East Shore Commercial Condominiums, was owned by William R. de Carion dba Surfwood Properties (de Carion) and was leased to defendants, who owned and operated a furniture manufacturing business. The parties' relationship was governed by a written lease dated February 1, 2013 (the Lease). Paragraph 5 of the Lease provided, "Lessee shall not commit waste, nor carry on any activity which would destroy or impair the <mask> of other lessees in the building of which the Premises form a part." Paragraph 6 required the Lessee to keep the Premises *556in good repair. Paragraph 8(A) required the Lessee to "keep in force a public liability insurance policy covering the leased Premises, including parking areas, if any, included in this Lease, insuring Lessee and naming Lessor as an additional insured. ... Said insurance policy shall have minimum limits of coverage of $ 1,000,000 in the aggregate." (Italics added.) The Lease did not specify which party (Lessor or Lessee) would carry fire insurance.


We recognize that "overpayment of rent" could refer to a rented property not being worth the amount of rent being paid because a nuisance created by defendant negatively affects the property's habitability or the tenant's <mask> of the premises. However, plaintiffs' primary nuisance theory was that defendants failed to maintain the park in good working order and condition and the jury expressly rejected that theory on the special verdict forms. Although the jury found in favor of plaintiffs on their secondary nuisance theory based on defendants' failure to follow their own park rules that required them to maintain their park-owned vacant mobilehomes in good condition, and presumably some percentage of the jury's award is attributable to that claim, it is inconceivable that this secondary nuisance claim was the main basis for the jury's award of $ 1,289,000 in compensatory damages and $ 57 million in punitive damages. The twofold gravamen of plaintiffs' case clearly was that: (1) defendants' failure to maintain the park in good working order and condition created a nuisance that caused them compensable harm and (2) defendants imposed unreasonably high space rent increases that some plaintiffs could not afford and that made it difficult or impossible for plaintiffs to sell their mobilehomes. In light of the jury's rejection of plaintiffs' primary nuisance claim based on failure to maintain the park, it is reasonable to conclude that the main basis for the jury's awards of compensatory and punitive damages was the high rental rates plaintiffs had paid or were paying.


The taking down of the building was, therefore, either the act of Whiting or of his contractor, Sniffen, and those employed by SnifEen. Whether those who took it down had any lawful authority to do so, does not appear. It does not appear distinctly whether they did so by any lawful order or direction of the department of public buildings. Tripler testifies that it was ordered down by the department of buildings, and Eidlitz testifies that it was removed, as he understood, by that department. As the defendants were themselves dispossessed, as well as the plaintifE, and as no act of Kane or his agent was shown directing or authorizing the taking down of his building (for the conveyance of the property by him to Whiting conferred no authority upon Whiting to disturb the plaintiff’s and the defendants’ possession, even if the conveyance had been delivered to Whiting before the building was taken down), then Whiting, or his contractor, SnifEen, and Tripler and Eidlitz were, as respects the plaintiff, mere wrong-doers and trespassers, unless they acted under the authority of the department of buildings, exercised in the mode provided for by the statute, of which there was no evidence, no proceeding on the part of that department having been shown, except the putting on the building of the preliminary notice. If those, therefore, who took down the building, did so without authority, the plaintiff’s remedy was against them, and their acts constitute no breach of the defendants’ covenant in the lease for <mask>.


When asked the question: “Was the provision in the will in Article Fifth designed to ensure that ultimately Gary and Gregory Hennel would be vested with the property at the termination of Edmund’s life estate free of any mortgage that Edmund Hennel placed on the property,” attorney Parisi responded: “That was my understanding from what they told me.” When *555asked the question: “Was the mortgage provision in the will, namely Article Fifth, and the <mask> and warranty provisions in the deed meant to work together and be read consistently with each other,” attorney Parisi responded: “I believe so.” (May 1, 2012 tr at 13-14.)


We have examined the answer with some degree of care, and are of the opinion that the defendant was entitled to prove each and all of the matters alleged therein, and entitled him to go to the jury thereon, and that it would be a denial of justice to hold over him a judgment that subjected him to damages for which he was in no way responsible, and to the enforcement of a clause in a lease to pay rent for premises he could not occupy or use for the purposes of his business, and which were of no use or value to him whatever, without the benefit of the plaintiff’s covenants of <mask> of all the demised premises.


"Each public housing agency shall utilize leases which * * * "(5) provide that any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants or any drug-related criminal activity on or *258near such premises, engaged in by a public housing tenant, any member of the tenant’s household, or any guest or other person under the tenant’s control, shall be cause for termination of tenancy”. (42 USC § 1437d [Z] [5].) The Court of Appeals of North Carolina concluded that Congress did not intend that the subject statute impose strict liability upon tenants for all criminal activity irrespective of their knowledge of or ability to control the acts. The court reached this conclusion upon review of the applicable expressed legislative intent. The court cited the congressional committee’s report that accompanied the 1990 amendment to 42 USC § 1437d (Z) (5): "This Section would make it clear that criminal activity, including drug related criminal activity, can be cause for eviction only if it adversely affects the health, safety, and <mask> of the premises. The Committee anticipates that each case will be judged on its individual merits and will require the wise exercise of humane judgment by the PHA and the eviction court. For example, eviction would not be the appropriate course if the tenant had no knowledge of the criminal activities of his/her guests or had taken reasonable steps under the circumstances to prevent the activity. S.Rep. No. 316, 101st Cong., 2d Sess. 179 (1990)”. (Charlotte Hous. Auth. v Patterson, supra, 120 NC App, at 556-557, 464 SE2d, at 71-72.)


Respondent’s fifth counterclaim argues that petitioner had a duty to disclose to the respondent prior to the execution of a lease whether it had any knowledge of lead-based paint hazards in the apartment pursuant to 24 CFR 35.88 (a). Pursuant to the Lead Paint Act (42 USC § 4821), United States Department of Housing and Urban Development (HUD) promulgated regulations that prohibit the use of and presence of lead-based paint, namely, 24 CFR part 35. The latter lists *829the disclosure requirements imposed on sellers and lessors which loosely include providing prospective buyers/lessees with an Environmental Protection Agency (EPA) approved lead hazard information pamphlet, a lead warning statement, and a statement disclosing any known lead-based paint or lead hazard. (24 CFR 35.88 [a].) Respondent contends that petitioner’s failure to disclose this information rises to a breach of the parties’ rental agreement and has interfered with her <mask> of the apartment in that she has been displaced from the apartment for several months.


Petitioner’s notice to cure implies that respondent is allowing undesirables into his apartment who may be using drugs and consuming alcohol excessively which has interfered with the peace and <mask> of other tenants in the building. Although no specific details of drug activity are provided in the notice to cure, the court concludes that said notice is not infirm.


It is evident that Judge Brady, who granted the injunction, did not consider the plaintiff entitled to such sweeping reliefj as his order expressly reserved to the defendants the right to institute summary proceedings before the justice of the district court within whose jurisdiction the premises were situated. Why this permission was not extended so as to include the other officers—the mayor, recorder, and justices of the Marine Court—upon whom jurisdiction in these proceedings is conferred, does not appear; but the fact that such proceedings were permitted at all shows that the injunction was aimed solely at the particular proceeding then pending, and that the facts were deemed insufficient to warrant the general injunction prayed for. In that opinion I entirely concur, for reasons to which I will presently advert; but I go further, and, after careful consideration, I think the facts were insufficient to support even the limited injunction granted. In the aspect of the case upon which this particular proceeding, and that alone, was restrained, the equity of the complaint consists simply in the averments respecting the testimony of the city judge. Now, how is the-plaintiff prejudiced by the inability of his tenants to pro*440cure that testimony ? He is neither a party to the proceedings,, nor in any legal sense privy to them. Neither his title nor James,’ can be tried therein. If the relation of landlord and tenant really exists by agreement between himself and these tenants, it cannot be disturbed by. a proceeding in which the only issues are whether that same relation exists by agreement between other and distinct persons, and whether these tenants in occupation have (illegally if, as the plaintiff states, they are really his tenants) attorned to any such other persons. These tenants can only be disturbed by James, in case they have, in violation of their duty to the plaintiff, assumed the positioti, by express agreement and not by mere operation of law, of subtenants of James’ alleged tenants. The proceedings being based, therefore, upon the existence of an agreement which, if ' entered into, was a practical denial of the plaintiff’s title, and upon alleged facts, with which neither the plaintiff nor his assigns are in any wise connected, this action cannot be sustained on the ground of the landlord’s duty to protect his ten- - ants in the <mask> of the demised premises. The plaintiff, therefore, really has no interest in the summary proceedings. They cannot affect the relations subsisting' between-the tenants and himself, and should they even result favorably to James, and thus enable him to acquire actual possession—a most unlikely contingency upon the facts before us—still, as-against the plaintiff) he would, if devoid of title, be as much a . mere trespasser, as though, withóut any proceeding, the premises . had been collusively abandoned to him by the plaintiff’s tenants. It is for the tenants, therefore—for they alone áre interested in the proceedings—to complain if unjustly deprived of ' testimony. The result, however, would have been the same if ‘ the action had been instituted by the tenants. A very strong case should, in my judgment, be presented to justify a court of ' equity in restraining, upon such grounds, the exercise of legitimate judicial functions. Otherwise any judge may be ousted of his lawful jurisdiction by a loose affidavit, claiming generally,, upon the advice of counsel, that he is a necessary and material witness for one side or the other. The utmost that can be glean- - ed from the plaintiff’s complaint and affidavits is, that the city;*441judge may, by producing the records of the previous proceedings, shake the credibility of E. D. James. Surely, this does not make the city judge “ a necessary and material witness for the plaintiff’s tenants, without the benefit of whose testimony they cannot safely proceed to trial.” Ought we, from-that slight circumstance, prevent the exercise of a lawful jurisdiction % We are not even assured that E. D. James will be a witness in those proceedings, nor that his testimony is likely to affect the result, nor that the plaintiff has ineffectually requested, either the judge to have these previous affidavits before him at the trial or his adversary to admit them. There is nothing but the bald fact that the judge has in his possession certain records, in which are embodied affidavits made by E. D. James, conflicting in respect to the alleged term of hiring with each other and with that upon which these last proceedings are founded. It appears, also, by the plaintiff’s own papers, that the tenants have it in their power, not only to contradict, but actually to impeach the witness in question; and thus the testimony, upon the alleged deprivation of which the equity of the complaint rests, will probably be merely cumulative. The interference claimed should be most sparingly exercised, and only upon facts the extreme opposite in strength and importance of the exceedingly slight averments here presented. It should, in fact be made to appear, clearly and unmistakably, that the judicial testimony is not of itself privileged, and that its absence would involve a complete denial of justice.


By the terms of the demise, the plaintiff agreed to let and the tenant to take, the premises, to be occupied as a lumber yard. This was an express covenant to occupy them as a lumber yard. To constitute an express covenant, no formal, technical, or precise terms are required; but wherever the intent of the parties can be collected out of the deed, for the doing or the not doing a particular thing, that is sufficient to make an express covenant. ’ Platt on Covenant, 27. The intention here is as plain as if the words of the lease were “ I covenant and agree to occupy the premises as a lumber yard,” and occupying them for another purpose was a breach of the covenant. The case of Kinney v. Watts (14 Wend. 38) was very different. There, under a de*45mise for years, tbe defendant was sought to be charged upon a covenant for <mask>. As no such covenant ‘was expressed, it had to be implied as the necessary consequence of the grant of the land, but as no covenant, in a conveyance of real estate, can be implied under the Revised Statutes (1 Rev. Stat. 738), it was held that the plaintiff could not maintain an action of covenant for a disturbance of his possession, though he might have maintained one for the injury done. But here the defendant expressly agreed that the premises should be occupied as a lumber yard; that was a covenant running with the land, and the assignment to the defendant was subject to that covenant. The erection of the buildings, therefore, was a wrongful act, and the defendant having thereby imposed a permanent charge iqpn the plaintiff’s property, which he refused to pay off, the plaintiff was forced to discharge it to release the property, and has a claim against the defendant for restitution.


The conditions that faced them on the date of their ‘ ‘ taking possession” constituted a major violation of the landlord’s covenant of <mask>, and represented a constructive eviction of the plaintiffs at the very inception of their projected occupancy. The apartment then was substantially as when viewed earlier, with few if any efforts at improvement undertaken. In one respect, the apartment was • substantially worse, and in another significant respect the apartment, viewed in the improved light provided by a lighting fixture in the bathroom, appeared worse.


But the position of affairs changed when a union of all the' lands and interests and the appurtenances was effected in Lindsley, who was also the owner of the uplands to the east of the highwater mark. It then became competent for him to convey the pier property with appurtenances that did not previously belong to it, but were necessary to the use of the pier, as a pier, in case of its severance from the other property. He, it is true, did not do so. He conveyed the whole to La Farge. But this placed La Farge in the same position. When, therefore, the devisees of La Farge made severance and conveyed the pier property while they retained the remainder, and in doing so conveyed the pier, by the description contained in the deed from the city to Lindsley, together with the extent of the width of the street, and also together with all and singular the appurtenances, &c., &c., and all the estate, right, title, interest, property, claim and demand which in La Farge, at the time of his decease, of, in and to the same, and every part and parcel thereof, and added covenants, in the ordinary form, for the <mask> and warranty, not only of the pier property specifically described, but also of the appurtenances, the grant carried with it all that La Farge had owned which was necessary to the use of the pier as a pier (Lampman agt. Milks, 21 N. Y., 505; Doyle agt. Lord, 64 N. Y., 432; Simmons agt. Cloonan, 81 N. Y., 557).


Plaintiffs' position is that defendants' charging unreasonably high rent subjects them to liability in tort for intentional interference with property rights. There is not a clearly defined cause of action in tort in California for intentional interference with property rights. In Barkett v. Brucato (1953) 122 Cal.App.2d 264, 264 P.2d 978 ( Barkett ), the Court of Appeal acknowledged the existence of a tort cause of action for "willful wrongful eviction, that is, the breach of the covenant of <mask>, accomplished by a series of intentionally annoying acts designed to compel the tenant to vacate. Such a tort (as distinguished from an action for breach of the covenant of quiet enjoyment) is recognized in the law. Section 822 of the Restatement of Torts defines this tort as follows: [¶] 'The actor is liable in an action for damages for a nontrespassory invasion of another's interest in the private use and enjoyment of land if, [¶] (a) the other has property rights and privileges in respect to the use or enjoyment interfered with; and [¶] (b) the invasion is substantial; and [¶] (c) the actor's conduct is a legal cause of the invasion; and [¶] (d) the invasion is either [¶] (i) intentional and unreasonable; or [¶] (ii) unintentional and otherwise actionable under the rules governing liability for negligent, reckless or ultra-hazardous conduct.' " ( Barkett , at pp. 274-275, 264 P.2d 978.)


Even had the landlord not entered into any stipulation, he would have been obligated to provide heat and hot water. In a lease agreement, whether commercial or residential, where there is no express covenant by the landlord to furnish heat, and where the entire building is heated from a central plant which is within the landlord’s exclusive control, as averred here, the covenant of <mask> will carry with it an implied obligation to furnish heat. (Rasch, New York Landlord and Tenant — Summary Proceedings [2d ed], § 152, citing Berlinger v MacDonald, 149 App Div 5, and Jackson v Paterno, 58 Misc 201.)


Upon the argument of the present appeal the court was pressed by the counsel for the appellants to reconsider this decision for the reason which was urged, that the deed should not be so construed as to contain a condition, but as merely limiting the use which might be made of the premises by a covenant on the part of the grantee. The terms made use of for this purpose as they were inserted in the deed are as follows : “ Provided always, and these presents are upon this express condition, that the aforesaid premises shall not, nor shall any part thereof or any building, or build *251ings tbereon erected or to be erected, be at any time thereafter used or occupied as a tavern or public house of any kind.” The language as it was made use of was appropriate only for the creation of a condition, and that it was so understood arid designed by the parties is to be further inferred from other portions of the deed referring to this as a condition. Before the deed itself was made, a contract had been entered into between Hogan and Jacob Mark for the sale of the property for the price of $16,000, and it is declared in the deed that the contract was “ upon the specific condition that no part of the land or buildings thereon should ever be used or occupied as a tavern.” And in the portion of the deed to which the persons executing it as trustees were more .particularly the parties, the grant is stated to be “ subject to and upon the condition hereinbefore expressed.” And the same clause follows and qualifies the warranties contained in the deed, and the final covenant for <mask> is in like manner made “ subject always to the condition hereinbefore expressed and the rights which may at any time result therefrom.” These several clauses are so clearly and explicitly expressed as to exclude all probability that the parties intended anything different from the creation of a condition by means of the language inserted for this purpose in the deed. And when such an intention has been expressed, or is necessarily to be inferred from the deed, the court is required to be controlled by it and to give effect to it in the disposition of the case. (Glaholm v. Hays, 2 Mann. & G., 257.)


Knight filed a motion for summary judgment or summary adjudication of each of Salima's claims. She argued that Salima could not prevail on any of her claims because she was unlawfully on the premises at all times after July 1, 2011, and was illegally on the premises after December 9, 2011. She also argued that (1) the conversion claim failed because Salima abandoned and did not try to recover her property left on the premises; (2) the breach of the covenant of <mask> failed because Salima's occupancy of the premises was illegal after December 9, 2011, and because this claim did not *843exist for commercial property as a matter of law; (3) the nuisance claim failed because Salima's occupancy of the premises was illegal and there was no evidence of a legally sufficient nuisance; (4) the negligence/strict liability claim failed because Salima's occupancy of the premises was illegal, there was no strict liability as a matter of law, and Knight was not negligent; (5) the contract *543interference claim failed because Salima did not have a contract to sell her business, but even if she did, Knight was unaware of it and did nothing to harm any alleged relationship, and Salima sustained no damages; and (6) the section 17200 claim failed because all the underlying claims failed, there was no business practice within the meaning of that statute, and Salima sustained no actual injury.


Vincent W. Versaci, S. Petitioners, Gregory Hennel and Gary Hennel, two grandchildren of the decedent, Edmund Hennel, commenced this proceeding pursuant to SCPA 1809 to determine the validity of their claim against the estate for satisfaction of an outstanding mortgage encumbering certain real property that the decedent conveyed to the petitioners four years prior to his death. The petitioners’ claim also seeks reimbursement for the mortgage payments they have paid since the decedent’s date of death, with interest from the date of each such payment. The petition*550ers allege four causes of action sounding in (1) breach of contract; (2) breach of title warranty and the covenant of <mask>; (3) promissory estoppel; and (4) unjust enrichment. In addition, the petitioners seek an award of attorneys’ fees on their second cause of action for breach of warranty.


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


If it had appeared, or if the evidence would warrant the ■ conclusion, that the building had been taken down by the direction of the superintendent of buildings, in the lawful exercise of the power and authority conferred upon him by statute, then, in my opinion, there would have been no breach of the covenant in the lease for <mask>. Such a covenant is necessarily entered into subject to the possibility of such a state of things occurring from the nature and condition of the premises demised, and the rights of the owners of the adjoining land. Where there is no covenant on the part of the landlord to repair or rebuild, and none is implied in a covenant of quiet enjoyment (Brown v. Quilter, Amb. 621), the tenant takes the premises as they are, and if, in consequence of natural decay, or the taking down of a building by the owner of adjoining land, or his excavations of subjacent soil, it becomes indispensable, as a public duty for the public safety, to take down the building, to prevent its falling down, there is no violation of the covenant for quiet enjoyment, which is nothing more, in the language of Mr. Taylor, than “ that the lessee shall not be evicted or disturbed by persons deriving title from the lessor, or by virtue of a title paramount to his ” (Taylor’s Landlord & Tenant, § 305, 5th ed.). The taking down of a building, as an act of necessity, to prevent its falling down, either by the public authorities, or in obedience to their orders, is not an eviction or disturbance of the possession by title paramount, there being no question of title involved in such an act. The taking down and destruction of the building, under such circumstances, has no more effect upon the covenants in the lease, than the destruction of the building by fire would have, an event which does not operate to produce the effect of an eviction, unless the landlord has expressly covenanted to rebuild or keep the premises in repair (Taylor’s Landlord & Tenant, § 309, and cases there cited).


3. The third objection under the appellant’s second point was that the judgments are satisfied by the sale of property. This is not quite true in point of fact; but if it were, it would not in this case be a Valid objection to the plaintiff’s right to the relief sought by their bill. They wish to remove an impediment to their <mask> of the property purchased, the defendant’s mortgage casting a cloud upon the title to it. The plaintiffs in the court below state that the sale of the property mortgaged was void and of no effect as to them; so says the defendant; the circuit judge says the sale was valid; and the chancellor understands the supreme court as having *347decided that an equity of redemption in personal property is not a subject of levy and sale under an execution. I apprehend there is some mistake as to this point, though not material perhaps in this case. It was held by Chancellor Kent, in Hendricks v. Robinson, above cited, that a mere equity in the proceeds of personal property cannot be sold on execution. There property had been assigned for the' payment of debts, and to indemnify against responsibilities incurred ; and from the statement of the assignees, there would still be a balance due them after the appropriation of the property assigned. The law, however, would hold the assignees liable to account for any balance which might be in their hands after indemnifying themselves. Executions had been issued after the assignment, and the chancellor says, “ I cannot see upon what principle the execution affected or touched the residuary equitable interest of the Franklins in the property which had been assigned. Again ; “ If the execution cannot sell, there is no reason why it should affect or bind a mere equity, and the doctrine would be equally inconvenient and absurd. The party’s only remedy, if he wishes to prevent the assignment or release of a chose in action, is by application to this court; and without such aid, the validity of the transfer will depend entirely upon the question of consideration and fraud.” In Marsh v. Lawrence, 4 Cowen, 461, it was decided that the equity of redemption on the mortgage of a chattel existing in that case, could not be sold on execution. The reporter has indeed stated it as a general proposition; but it will be seen from the opinion of the court, that that doctrine was intended to apply where the mortgagor had no right of possession for any definite period. All the interest the mortgagor had, if any, was an equitable right to any surplus which might remain in the hands of the mortgagee after a sale by him. But when the mortgagor has a right to redeem, and a right to the possession for a definite period before the property can become forfeited, and liable to be taken and sold by the mortgagee, the mortgagor has an interest which may be sold on execution. The purchaser in such case takes the property subject to the incumbrance ; he purchases the right of the mortgagor, which is a right to the possession and the absolute own*348ership, subject to the incumbrance ; but if the mortgage at the time of the sale on execution has been forfeited, the mortgagor has not the right of possession for a moment; all the right he has is an equity. In accordance with these views, the supreme court held in McCraken v. Luce, referred to in Otis v. Wood, 3 Wendell, 500, that a mortgagor of a chattel having a right to • the possession for a definite period, had an interest which was liable to be sold. This is in accordance with the doctrine as to mortgages of real estate. The interest of the mortgagor in possession, and before forfeiture, is liable to be sold on execution. If therefore in this case the mortgage were valid, Green still had an interest which might be sold on execution, and the purchaser would have a right to redeem. The mortgage did not become absolute until the first of J anuary, 1828 ; the sale was on the 8th of December previous. The bill, however, was properly filed as a bill to redeem on the first January, 1828, supposing the mortgage to be valid, the defendant having refused to accept the money due him.


The lease contains a covenant of <mask> (par 22). It also contains a broad subordination clause (par 7). Plaintiff contends that the subordination clause clearly makes the lease subject to "all mortgages which may now or hereafter affect such leases” (Wagner v Van Schaick Realty Co., 163 App Div 632). That the covenant of quiet enjoyment is superseded by the subordination clause.


As noted, our partial reversal of the judgment remands the cause for a new trial and places the parties in the same position as if the cause had never been tried, with the exception that this opinion must be followed to the extent it is applicable. ( Hall v. Superior Court, supra , 45 Cal.2d at p. 381, 289 P.2d 431.) Based on our discussion above, the following claims remain viable on remand: (1) plaintiffs' cause of action for declaratory relief, seeking a determination that certain provisions in plaintiffs' long-term leases are unconscionable; (2) plaintiffs' cause of action for unfair business practices in violation of the UCL; (3) plaintiffs' nuisance claims that defendants failed to maintain the park in good working order and condition and failed to follow their own park rules that required them to maintain park-owned vacant mobilehomes in good condition; and (4) plaintiffs' claims for breach of contract and breach of the covenant of <mask>, negligence and negligence per se, to the extent these claims are based on conditions in the park and not on high rent. Plaintiffs' cause of action for intentional interference with property rights may be legally viable; however, as we discussed, it cannot properly be based on rental rates allowed by the parties' leases or law.


As recited in the stipulation of the parties, the appropriations by the State of lands of abutting owners, some twenty-eight in number, were made in 1909, excepting as to two parcels which were made in January and August, 1910. Concededly, certain of the awards had been made, and settlements consummated with other abutting owners prior to the date of the service of the map and notice of appropriation upon the claimant in November, 1911. It is not claimed that the deposit of any such award was ever made by the Comptroller pursuant to section 88 of the Canal Law, or that a notice of the appropriation of any of the abutting lands was ever given to claimant, or that at the time any award or settlement was made it was suggested by the State authorities that an award to the claimant was intended to be included in an award to an abutting owner. In fact, the State concedes that the value of claimant’s property was never taken into consideration in estimating the value of any property appropriated by the State, and claims that there is no liability upon the part of the State to the claimant. It is certainly not the policy of the State to confiscate private property for State uses. As was said by Judge Cardozo in Jackson v. State of New York (213 N. Y. 34): “Condemnation is an enforced sale, and the State stands toward the owner as buyer *321toward seller. On that basis the rights and duties of each must be determined. ” The value of an easement to erect and maintain a pole was stipulated at one dollar, but it is doubtful whether there was in fact any damage whatever to the fee by reason thereof, as in an action for breach of covenant of <mask> it is the manner in which an easement affects the value of the premises as a whole which constitutes the loss, if any. (Hymes v. Esty, 133 N. Y. 342, 346.) Indeed, a telephone line along country highways such as these were might be considered a benefit rather than an injury to the abutting property. Whether the State may have questioned claimant’s easements being incumbrances within the meaning and intent of the Canal Law, and hence may have doubted its legal right to distribute claimant’s compensation among the twenty-eight different property owners, or may have considered that method too vexatious and dilatory, is not material in view of the fact that it has sought to appropriate claimant’s property as a whole, which it had the right to do; and in view of the record in this case it hardly .lies with the State to claim otherwise.


Since April, 1979, plaintiff has resided in his rent-controlled apartment pursuant to an agreement with the prime tenant creating a valid sublease through December 31, 1985. The sublease was undisputed and undisturbed, and the defendant landlord accepted rent from plaintiff through July, 1980. This <mask> was interrupted, however, when the landlord refused plaintiff’s August, 1980 rent check. A 30-day notice to cure dated August 29, 1980 was allegedly served upon the prime tenant for permitting occupancy by persons other than the prime tenant or his immediate family. This was followed by a notice of termination dated September 18, 1980.


In the case of Leech v. Schweder (L. R., 9, Ch. App., 463), there was a demise of premises “ with all lights, easements, •advantages and appurtenances,” and a covenant of <mask>. The judges in their opinion say that the covenant of quiet enjoyment does not enlarge that which was previously granted ; that the grant of lights is “ the grant of that which had, in law, an existence as an easement over another man’s property at the time when tlie grant was made.”


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


There is no question that the interrogatories which will assist the defendant in her defense of plaintiffs contract action and her counterclaims grounded in contract (breach of covenant of <mask> and constructive eviction) will also assist her in her counterclaim alleging plaintiffs "negligence” in hiring, training, supervising and retaining (after Feb. 22, 1974) Clarence Warren in its employ. Plaintiff contends that if the action sounds in negligence, i.e., if recovery is dependent on proof of negligent conduct the courts will prevent the use of interrogatories, even though the complaint may allege other cause of action, such as breach of contract *523(Marotta v Roundtree Estates, 50 Misc 2d 149). Further, in an action where there are viable causes of action other than negligence, the court will strike those interrogatories which relate and are directed to the question of negligence (Fusco v Enzo-Gutzeit, 42 Misc 2d 101).


The landlord’s covenant of <mask> of the premises demised, only goes to the extent of engaging that the landlord has a good title, and can give a free, unincumbered lease of the premises for the term demised (Weeks v. Bowerman, 1 Daly, 100; Johnson v. Oppenheimer, 34 N. Y. Superior Ct. 416, 428, affirmed in 55 N. Y. 280 ; 3 Duer, 464 ; 3 Hill, 330). There is no legal reason, therefore, which excuses the tenant from the performance of his covenant.


Peng filed a cross-complaint against Hong Sang, Ming Kee, and Ming's Poultry, LLC. Peng alleged four causes of action against Hong Sang: interference with contractual relations, breach of the covenant of <mask>, declaratory relief, and conspiracy. Peng alleged that Hong Sang had falsely advised her that Ming Kee was in default under the master lease and that her sublease was terminated as a result. She claimed that she was forced to hire an attorney as a consequence and incur attorney fees and costs to defend herself against the unlawful detainer action filed by Hong Sang in 2009. In the conspiracy cause of action, Peng alleged that the cross-defendants had conspired to render Ming Kee insolvent and prevent her from collecting her judgment against Ming Kee by offsetting the amount *106of the judgment against rents owed to Ming Kee. The declaratory relief cause of action sought a declaration of the parties' rights and duties pertaining to the premises occupied by Peng.


The tenants have urged this court to imply that a breach of the covenant of <mask>, a constructive eviction, has occurred by reason of the claimed inadequacy of police personnel assigned to their project and to the insecurity that they experienced due to this claimed inadequacy. There are a variety of conditions and circumstances which have been construed by the courts as constituting a constructive eviction and a substantial deprivation of enjoyment of leased premises. Some of these conditions have consisted of noxious odors, lack of heat or water, excessive noise, water leakage, the presence of vermin and the lack of elevator service (1 N. Y. Law of Landlord and Tenant, § 251; 1 Rasch, Landlord and Tenant, §§ 882-903; 33 N. Y. Jur., Landlord and Tenant, §§ 171-178). Inadequate protection has never been construed to constitute a constructive eviction or a breach of the covenant of quiet enjoyment.


While the evidence before the grand jury shows that on June 18, 1931, the property covered by the lease was sold pursuant to a judgment of foreclosure of the mortgage made by the defendant, the record is barren of any evidence that Wiegand was made a party to the foreclosure action, so as to cut off his lease. This is fatal to the prosecution, since there would be no breach of the covenant of <mask>. (Metropolitan Life Ins. Co. v. Childs Co., 230 N. Y. 285, 289, 290.) In this case Judge Andrews wrote: “As a general rule a tenant is liable under his contract of lease until he is evicted. * * * If * * * he is not a party to the action his rights are not affected. There is never an eviction. * * * where he is not a party his interests are not touched.”


I suppose that the Bevisfed Statutes intended to require grantees who desired to protect themselves to have the necessary covenants inserted to leave nothing to implication or inference. It has been well settled that the covenant of warranty was broken only by eviction ; that is, by the actual taking away the whole or some part of the land which by the deed purported to be guaranteed. Mere limitations or restrictions upon the use of the land are not evictions. The title remains in the grantee and the possession. The easement may be a great incumbrance. But a covenant of warranty is not a covenant against incumbrances. And a covenant of <mask> is practically the same as a covenant of warranty.


“unlawful for any owner or any person acting on his or her behalf, directly or indirectly, to engage in any course of conduct (including but not limited to interruption or discontinuance of required services, or unwarranted or baseless court proceedings) which interferes with . . . the . . . <mask> of the tenant in his or her use or occupancy of [his or her apartment], or is intended to cause the tenant to vacate such [apartment] or waive any right afforded under th[e Rent Stabilization] Code.” Accordingly, 363-367 Neptune Avenue, LLC’s motion for an order requiring Thomas Neary, Salvatore Benevento, and Carmel Salerno to vacate the subject premises is denied. 363-367 Neptune Avenue, LLC’s additional motion is denied insofar as it seeks to dismiss Thomas Neary, Salvatore Benevento, and Carmel Salerno’s first and fourth counterclaims, is granted insofar as it seeks to dismiss Thomas Neary, Salvatore Benevento, and Carmel Salerno’s second and third counterclaims, and is denied as moot insofar as it seeks to dismiss Thomas Neary, Salvatore Benevento, and Carmel Salerno’s affirmative defenses. In view of the dismissal of 363-367 Neptune Avenue, LLC’s complaint, Thomas Neary, Salvatore Benevento, and Carmel Salerno’s motion is rendered moot insofar as it seeks a preliminary injunction; however, 363-367 Neptune Avenue, LLC is directed to *796make repairs and maintain essential services on an ongoing basis and to take prompt steps to correct maintenance problems as they arise in accordance with the Rent Stabilization Code, and to also refrain from harassing Thomas Neary, Salvatore Bene vento, and Carmel Salerno in compliance with the Rent Stabilization Code.


The trial court's error in finding that breach of the covenant of <mask> did not apply to commercial leases does not affect the correctness of its grant of summary adjudication because the breach that Salima asserted was that she was constructively evicted (see Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1299, 173 Cal.Rptr.3d 159 [the covenant of quiet enjoyment "is breached upon actual or constructive eviction of the tenant"] ), and the trial court properly rejected that assertion.


First, frequent arguments arise regarding whether annoyance and inconvenience may serve as a basis for a finding of a breach of the warranty of habitability. It is clear that under the covenant of <mask>, annoyance and inconvenience would not breach that covenant. (Goldner v Doknovitch, 88 Misc 2d 88, 91, upon remand NYLJ, Jan. 12, 1977, p 14, col 2.) The entire warranty of habitability, on its face, is a broader and more encompassing theory. Based upon a close analysis, annoyance and inconvenience could well serve as a basis for a determination of a breach of the third branch of the warranty and as a factor to consider in relation to the breach of the first branch of the warranty.


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


Based upon the foregoing, respondent’s first and fifth counterclaims set forth valid claims for relief and are appropriately interposed in this nonpayment proceeding. Accordingly, respondent’s motion is granted to the extent of allowing respondent leave to amend and file her amended answer, absent her third affirmative defense and fourth counterclaim nunc pro tunc. Additionally, petitioner’s reliance on New York City Hous. Auth. v Alexander (NYLJ, July 18, 1996, at 21, col 3 [App Term, 1st Dept]) is misplaced inasmuch as that case involved the applicability of the defense of breach of warranty of <mask> to a summary holdover proceeding.


In this nonpayment summary proceeding, tenant moved to vacate a default final judgment and warrant, asserting, inter alia, that she had not been served with the rent notice or notice of petition and petition, and that landlord’s agent had removed mail from her mailbox. She also asserted a defense of breach of the warranty of <mask>, and attached a printout of the violations in the apartment. On the September 8, 2005 return date of the order to show cause, tenant’s then attorney appeared without her and entered into a stipulation of settlement. The stipulation provided that tenant’s motion was granted solely to the extent of staying execution of the warrant until October 15, 2005 for tenant to pay $10,148.60 plus October rent. The stipulation was signed by tenant’s then counsel as “LL Atty.” Shortly thereafter, tenant filed a consent to change attorney, and her new counsel promptly moved to vacate the stipulation. Tenant claimed that her former attorney, whom she had retained only after she had received the marshal’s notice, did not inform her of the return date of the order to show cause and that he entered into the stipulation without her knowledge and consent. She also claimed, inter alia, that the amount of rent arrears agreed to in the stipulation was as much as $4,000 in error, and she noted that the stipulation made no provision for repairs. *86Landlord opposed the motion on the ground that tenant showed no basis to rescind the stipulation.


*436Although under Park West Mgt. Corp. v Mitchell (supra), violations by themselves are not necessarily a breach of the warranty, although a prima facie indication of the same, it cannot seriously be argued here that the impact of the conditions in the case at bar upon tenants’ <mask> is de minimus. They do not merely involve aesthetic or cosmetic matters having no serious negative impact on the tenants’ habitability. And, where the uses which the tenants reasonably intend to make of the premises at the time they rented the same are frustrated, the warranty has been breached entitling tenants to damages. (Real Property Law, § 235-b; Park West, supra, pp 316-317.) Now, as for the damages.


A trial has now been held at which the tenant argued as a factual matter that a violation of the warranty of <mask> has and is still taking place and urged that a rent abatement be granted. The testimony before the court clear*954ly and credibly established that the noise and dust from the demolition and construction were annoying, irritating and disrupted the lives of occupants of the multiple dwelling. As to the individual respondents, only William Corley appeared and he testified that Ena Malone had moved from the apartment and had established another residence. At the time that they had rented the apartment, it was shown that at least William Corley had knowledge of the plans for the immediate commencement of demolition and construction and that he and Ena Malone had previously resided in the half of the building which has now been demolished.


Finally, the court relies on Highview Assocs. v Koferl (124 Misc 2d 797) where plaintiff landlord of a 366-unit garden apartment complex breached the implied warranty of <mask>, as well as the express warranty of use and quiet enjoyment, by its failure to take any steps to protect its tenants in the face of the many (i.e., 10) notices of theft and burglaries committed in the complex in one year.


“[t]he [c]curt notes that petitioner would be hard pressed to claim surprise as to the alleged conditions in the respondent’s apartment. [As i]n prior litigation between the parties . . . there were ‘well documented <mask> claims’ as well as class ‘C’ violations . . . [Additionally, i]n the instant proceeding, the respondent’s pro se answer alleged that *710there were conditions in need of repair.”7 The “court’s discretionary grant of the tenant’s motion to amend her initial, pro se answer to include a counterclaim based upon the landlord’s alleged violation of federal lead paint disclosure requirements was consistent with the general rule favoring amendments of pleadings in the absence of prejudice or surprise.”8


The evidence sustains the implicit finding of the Trial Judge that appellant failed to establish its claim that tenant set the fire of September 15, 1975. The evidence also supports the findings of the Trial Judge that tenant had not abandoned the apartment, and that more than a reasonable time had expired since the fire for respondent to have restored the apartment to <mask>. Furthermore, there was no administrative hearing finding petitioner-respondent to be an undesirable tenant (see Escalera v New York City Housing Auth., 425d 853). Therefore, there was no proper basis for denying petitioner occupancy of the apartment and she is entitled to be restored to her right to occupancy of the apartment.


The tenant claims in response that from the date of the 755 order until the termination of the tenancy, conditions persisted which justified the continuance of the order, and that she in turn should receive the deposited money, first, because that result more effectively advances the purposes of section 755, and second, because of the landlord’s alleged breach of the implied warranty of <mask>.


The First Report also contained the following disclaimers and liability limitations: "(1) Defects Disclaimer: You are cautioned that even though these premises and/or equipment *339may be in good condition upon examination, that this condition may vary thereafter and we are not responsible for not reporting latent defects or defects caused by previous misuse * * * (2) <mask> Disclaimer: This report should not be construed as a basis for evaluating the habitability of the premises, or the future merchantability of the premises, or the monetary worth of the premises, or whether the same should be purchased; (3) Warranty Disclaimer: This report provides no guaranty or warranty of the premises or equipment therein or of their suitability for use or of any recommendations made herein. We are only available to provide advice and discuss with you conditions and defects that concern you * * * This report is not an insurance policy * * * and we make no warranties, guaranties or representations, expressed or implied, in connection with the enclosed report * * * (4) Liability Limitations: * * * our liability is limited to the cost of the inspection; [and] (5) Acceptance As Assent: By accepting this report and utilizing it, the prospective owner(s) named above accept the terms, disclaimers, inspection limitations, and liability limitations of this report. These limitations of liability include and apply to all consequential damages, bodily injury and property damage of any nature. ”


Respondent now moves by order to show cause to vacate the stipulations herein, stating she was not aware of various defenses when she signed the stipulations. The respondent is now represented by the Legal Aid Society which raises on her *679behalf the defense of breach of warranty of <mask> and improper rental amount. The respondent alleges the petitioner or the New York City Department of Housing Preservation and Development (DHPD) failed to assist her in obtaining section 8 benefits as required by the Rules and Regulations for Rent Increases to Tenants in Occupancy in Division of Alternative Management Programs (DAMP regulations). The DAMP regulations are applicable to all buildings owned by the City of New York and managed by nonprofit organizations, tenant associations or private entities such as the petitioner.


Summary judgment must be “denied if any party shall show facts sufficient to require a trial of any issue of fact.” (CPLR 3212 [b].) Here, there are issues of fact which must be tried. For example, respondents assert both as a defense and as a counterclaim that petitioner brought this proceeding to retaliate against them for lodging complaints about, among other things, a lack of heat; however, petitioner avers that respondents destroyed the heating system. For another example, respondents assert as both a defense and a counterclaim that petitioner breached the warranty of <mask>,1 yet petitioner avers that respondents prevented her from making repairs. The court may not resolve these disputes on motion papers.


Respondent’s answer alleges that the landlord failed to furnish adequate heat, and based thereon, has interposed the *85defense of retaliatory eviction for tenant’s complaint to the building department, and three counterclaims seeking damages, the first based upon breach of implied covenant of quiet enjoyment; the second, for breach of implied warranty of <mask> and the third, based upon the elements of retaliatory eviction.


Plaintiff concedes that a claim of statutory warranty of <mask> is not available, but without providing any authority, contends that a condominium owner can, nonetheless, be actually or partially evicted from his or its premises. Citing Hohenberg v 77 W. 55th St. Assoc. (118 AD2d 418 [1st Dept 1986]), plaintiff contends that, even absent a claim for warranty of habitability, damages are available for costs incurred as a result of the disconnection of the auxiliary tower, including, but not limited to, costs of reconnection.


Nonetheless, the lower court’s determination should be sustained based upon a finding that plaintiff breached the warranty of <mask> (Real Property Law § 235-b). After the dumpster was placed in front of the townhouse, defendant’s family became ill due to the odors. There were 20 townhouses in the complex and each of them used this one dumpster to dispose of their garbage. The defendant had to keep the townhouse windows closed but the odors still permeated his home. Defendant could not enjoy the use of his deck or the company of friends.


Obviously, when dealing with uninhabitable vacant space converted by a loft pioneer into living quarters, the application of the warranty must necessarily be different. The concept of separate standards for loft residents was recognized by our Appellate Term in Silverstein v Roof Bin (NYLJ, Dec. 16, 1982, p 7, col 2) where, in dicta, it said (col 3) that in: “defining the scope of the warranty and computing the amount of damages sustained by a loft tenant as a result of its breach, it may become necessary to draw a distinction between the standard of <mask> to which an interim multiple dwelling may reasonably be expected to conform and the standard governing more conventional classes of housing accommodations.”


The Court of Appeals in Park W. Mgt. (47 NY2d 316, 329, supra) stated that "the proper measure of damages for breach of the warranty is the difference between the fair market value of the premises if they had been as warranted, as measured by the rent reserved under the lease, and the value of the premises during the period of the breach. "The court left open the issue whether remedies other than contract damages were available to the aggrieved party. Initially, courts held the landlord was strictly liable for the breach of the warranty of <mask>, thus awarding consequential damages. (See, for example, Kaplan v Coulston, 85 Misc 2d 745 [Civ Ct, Bronx County 1976]; McBride v 218 E. 70th St. Assocs., 102 Misc 2d 279 [App Term, 1st Dept 1979]; Goodman v Ramirez, 100 Misc 2d 881 [Civ Ct, NY County 1979].)


As an affirmative defense to this proceeding tenant asserted a breach by landlord of the warranty of <mask>. In that regard it is alleged in tenant’s answer that the *987ceiling in the bathroom leaks; the plumbing is defective; the toilet is broken; the bathroom tiles are loose; there are cracks in the kitchen walls; the refrigerator door doesn’t close; the apartment is infested with roaches; and the wiring in the second bedroom is defective. While these allegations are sufficient to state an affirmative defense of breach of the warranty of habitability (Park West Mgt. Corp. v Mitchell, 47 NY2d 316, cert den 444 US 992; Goldner v Doknovitch, 88 Misc 2d 88), the court below concluded that such an affirmative defense of breach of the warranty may not be asserted against the City of New York qua landlord, and thus summarily awarded final judgment in landlord’s favor.


The court below in denying tenant’s motion for summary judgment rejects the tenant’s contention that strict liability devolves upon the landlord if the premises are rendered, in part or in whole, uninhabitable, and adopts the landlords’ argument that proof of a "defect” within the premises is a prerequisite to the imposition of liability upon a landlord for breach of the warranty of <mask>. The court having so held noted that a question of fact was presented as to whether the flooding was caused by a "defect” within the premises or by heavy rains overloading storm sewers.


This brings us, then, to the consideration of the only question left on this branch of the lease, to-wit, was the delay of the plumbers employed by the plaintiff in completing the repairs a sufficient ground to constitute an eviction? It appears that the plumber commenced work and did some excavating in the area about April 10th, and, for some unexplained reason, did not again proceed with the work in hand till April 18th, on which day defendant moved out of the premises. It is conceded that the defendant made no complaint to the plaintiff of the delay in completing the repairs, although she lived next door to the demised premises. The tardiness of mechanics in completing household repairs is, we think, a matter of general knowledge to all householders, and this case formed no exception to the general rule. Plaintiff employed a plumber to make the required repairs, and there is no claim that he was an incompetent person. In the absence of any complaint or notice from defendant, we think that plaintiff was justified in assuming that the repairs were proceeding in the usual way. That the delay of the plumber employed by plaintiff in not proceeding with the work commenced by him for a period of eight days was such an interference with defendant’s beneficial enjoyment of the premises as to constitute an eviction, and authorize him to abandon the premises, especially in the absence of any notice to the plaintiff of such delay, we are not prepared to hold. Here was no wrongful act on the part of the landlord. She was doing just what the defendant, through the department of health, had required her to do, and she was pursuing the usual course. She was engaged in acts calculated to add to the <mask> and enjoyment of the demised premises by the defendant. While, of course, the principalis generally liable for the wrong-doing of her agents, we think that it would be a harsh and unwise application of that rule to hold, in the present instance, that, by the neglect of the plumber in promptly completing the work he was employed to perform, he could evict defendant from the demised premises so as to release him from all liability under his lease.


First, it is claimed that the creation of a conditional limitation based upon a rent default interferes with the tenant’s right to cure rent defaults in nonpayment proceedings pursuant to RPAPL 751 (1). Second, it is claimed that the clause severely limits the statutory right to assert a breach of the warranty of <mask>. For the following reasons, I agree, and hold that the conditional limitation is void as contrary to public policy.


The Hilalys argue that allowing the defense "would result in the following absurd scenario: (1) if such an alleged change in the terms of tenancy was so great that it affected the tenantability or <mask> of a property, then such a defense would be precluded; but (2) the further away from habitability the change in terms is, the more likely such change would serve to bar a landlord's possession." The Hilalys' concerns are misplaced.


It is the opinion of this court that while section 235-b of the Real Property Law grants and protects the right of the tenant to claim a breach of warranty of <mask> and voids as against public policy any provision of a lease which claims a waiver of said right, said statute does not mention and has no bearing on the jury waiver provision found in the lease at bar.


The plaintiffs allege that due to the defendant landlord’s failure to provide central air conditioning, they have been damaged in the amounts sued for. The plaintiff, Ms. Hausman, claims she was required to .rent an air conditioner and to clean a rug. The plaintiff, Mr. Hynes, claims reimbursement for expenses incurred for meals taken away from home, hotel expenses and the purchase of an air conditioning unit. The plaintiffs assert that the defendant landlord has breached their leases in failing to provide air conditioning as contracted for and moreover has breached an implied warranty of <mask>.


Within a lifetime, the major wars, the consequences of industrialization, the gravitational pull of agricultural workers to the city, having resulted in urban congestion and a scarcity of residential housing. In New York, these factors and an increasing sensitivity on the part of law makers to the electorate (more tenants than landlords) tipped the scales of landlord and tenant law away from his historic bias. This shift in legal attitude has been evidenced by legislative adoption of rent controls, recognition of the warranty of <mask>, imposition of multiple dwelling safeguards and a myriad of other laws designed to protect tenants. Long before this exhibition of legislative solicitude for the rights of tenants, one area in which the common law had been quite protective of the tenants’ rights was with respect to the assignment or subletting of the leasehold. Even in the formative days of the landlord and tenant law, the public policy supporting the free alienation of land was seen as stronger than the policy protecting landlords.


. A tenant may enforce his rights under the warranty of <mask> by seeking damages in a plenary action or by asserting breach of the warranty of habitability as a defense and/or counterclaim in a summary nonpayment proceeding. (See Park W. Mgt. Corp. v Mitchell, 47 NY2d 316, 329 [1979].) Thus, a tenant may enforce his rights under section 235-b by withholding rent and inducing a landlord to commence a nonpayment proceeding.


Tenant and Landlord orally agreed that Tenant would rent a house from Landlord for $600 a month on a month-to-month basis. Tenant began living in the house and paying rent in September of 2015. On March 10, 2016, Landlord filed a rent and possession petition in the associate circuit division of the circuit court alleging that Tenant owed $600 in rent for the month of March. Tenant filed a responsive pleading denying that any rent was due. Tenant alleged that he was withholding rent until necessary repairs were made to the house. He asserted as an affirmative defense and counterclaim that Landlord breached the implied warranty of <mask> by failing to provide a premises fit for human occupation due to a sewer problem. Tenant also asserted as an affirmative defense that the Landlord's petition was an attempt to enforce an illegal contract. Tenant alleged that the City of St. Louis condemned the property because Landlord never obtained a certificate of inspection permitting occupancy of the house.


Along with this narrower approach comes a concomitant reduction in the scope of damages. (Brussel v Ruxton Assoc., supra.) The proper measure of damages for a breach of the section 235-b warranty of <mask> is the reduction in the fair market value of the premises due to the alleged defect; said compensatory damages to be awarded by lump sum or percentage rental abatement. (See, 2 Rasch, New York Landlord & Tenant—Summary Proceedings § 561.5 [2d ed, 1986 Cum Supp].)


In this action for nonpayment, petitioner landlord affirmatively puts forth the argument that Federal law preempts a State court from adjusting rent increases approved by HUD. The landlord petitioner’s second argument, put forth defensively in response to the tenants’ counterclaim of a breach of the warranty of <mask>, argues that alleged deficiencies in services and conditions, even if substantiated, do not reach the level of a breach of the implied warranty of habitability. The respondent tenants’ polemical powers are spent interpreting all available data on the boundaries and limitations of the warranty of habitability and applying those interpretations favorably to the present situation. As a result of this alleged breach, the tenants seek a rent abatement.


The respondent alleges that his apartment is subject to rent stabilization, and accepting same as true, he is entitled to certain predicate notices (9 NYCRR 2524.2) as indicated in his ninth affirmative defense. In addition, the respondent’s warranty of <mask> defenses (i.e., twelfth, fourteenth and fifteenth) are viable defenses to the petitioner’s request for use and occupancy. (Evans v Charap, NYLJ, Dec. 18, 1991, at 23, col 1 [Civ Ct, NY County].) Therefore, the petitioner’s request to dismiss said defenses is denied. On the other hand, as the petitioner has produced a valid certificate of occupancy and *471multiple dwelling registration, the respondent’s tenth and eleventh affirmative defenses regarding same are dismissed. Lastly, as the respondent’s thirteenth defense of waiver is set forth in conclusory terms and completely devoid of facts (Hyman v Levin, 243 App Div 6 [1st Dept 1934]), said defense is likewise dismissed.


It is well settled that the warranty of <mask> applies to the City of New York. In City of New York v Rodriguez (117 Misc 2d 986 [App Term, 1st Dept 1983]) the court noted that the Legislature had at times specifically exempted city-owned property from remedial tenant legislation. It deemed signifi*752cant the failure of the Legislature to grant city-owned property an exemption from Real Property Law § 235-b.


Except for the warranty of <mask>, parties are, of course, free to change their statutory and common-law rights and responsibilities by contract. In the instant situation such changes must be derived from the express language of the proprietary lease. The construction of the relevant portions of the proprietary lease here is critical to the determination of the issue at bar, namely who bears the expense of the ceiling repair.


The court initially denied petitioner’s motion to amend, but is now reversing that decision. The petition is, therefore, deemed amended to conform to the finding that the building is a de facto class "A” multiple dwelling. Respondent’s motion to amend his answer to allege a breach of the warranty of <mask> as an affirmative defense as well as a counterclaim is also granted, although initially denied.


Judge Davis found that the landlord respondent had, therefore breached the warranty of <mask>, and that the fair market value of the rented premises was 50% of the agreed rate of $250 per month or $125 per month for the months of June and July, 1980. The court found that the tenant appellant had paid for her rent in full for the month of June, 1980, and thereafter, withheld the entire amount of the rent for the months of July and August, 1980. The court then went on to award the tenant appellant a rent abatement in the amount of $125 per month for the months of July and August, 1980. However, the decision does not reveal any specific finding of a breach of the warranty of habitability for the month of August, 1980. The court also failed to award a rent abatement to the tenant appellant for the month of June, 1980, for which a specific finding of a breach of the warranty of habitability had been made and for which a fair market rental value of $125 had been established.


*623Additionally, the court dismisses plaintiffs’ unjust enrichment claim. The warranty of <mask> arises from the subject leases — which are written contracts — and, hence, cannot give rise to the quasi contract, unjust enrichment cause of action. (Goldman v Metropolitan Life Ins. Co., 5 NY3d 561 [2005]; accord Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 388 [1987].) The claim also would fail against the managing agent defendants because it seeks to improperly impose contractual liability onto third parties. The subject rent is the property of the landlords, not the managing agents, and can only be recouped from the former. Absent veil piercing allegations, there is no basis to maintain a claim against the managing agent defendants.


12 Respondent argues that appellant “cannot raise a negligence per se argument as to statutes identified for the first time in her opposition to [the] motion for summary judgment. Appellant cannot keep moving the goal post. The tactic of changing one’s story to avoid summary judgment . . . is improper.” We note that she objected to appellant’s new claims based on the implied warranty of <mask>, nuisance, and unfair business practices, but there was no similar objection to claims based on the Building Code, the Civil Code or the State Housing Act of California. As to those last three statutory based claims, Cassell briefed them in her reply papers. Though these issues are moot, it bears noting that respondent cannot be heard to complain that appellant raised new theories in her opposition to the summary judgment motion because the reply brief addressed appellant’s new theories on the merits without raising an objection. (Stalnaker v. Boeing Co. (1986) 186 Cal.App.3d 1291, 1302 [by briefing the merits and not objecting, defendant waived objection to plaintiff asserting a new cause of action in opposition to summary judgment].)


Since respondent is a pro se litigant- the court must take special care in determining whether she has asserted legally cognizable defenses and counterclaims. Ms. Braxton has raised an affirmative defense and counterclaim alleging breach of the warranty of <mask> based on the landlord’s failure to provide adequate security. Her second counterclaim seeks damages for the loss of property that occurred as a result of the alleged burglary.


Inasmuch as the duty of the tenant to pay rent is coextensive with the landlord’s duty to maintain the premises in habitable condition, the proper measure of damages for breach of the warranty is the difference between the fair market value of the premises if they had been as warranted, as measured by the rent reserved under the lease, and the value of the premises during the period of breach. Such damages, however, may not include a sum awarded for embarrassment or anxiety. That damages are not susceptible of precise determinations does not insulate the landlord from liability. This court finds that the rental value of tenant’s apartment was diminished 50% on each of the 13. days of water deprivation. Calculated on the monthly rental of $558, tenant is entitled to an abatement of $120 as against the rents which tenant conceded were lawfully demanded in this summary nonpayment proceeding. But, since tenant has sustained her affirmative defensive and counterclaim for breach of the warranty of <mask>, she should not be liable for attorney fees, which are hereby denied. (Park West Mgt. Corp. v Mitchell, 47 NY2d 316, supra; Kalikow Props. v Modny, NYLJ, May 2, 1978, p 5, col 1; Goldner v Doknovich, 88 Misc 2d 88, supra; Whitehouse Estates v Thomson, 87 Misc 2d 813.)