TARDIBONE v HOPKINS [17 Misc 3d 888] 889
APPEARANCES OF COUNSEL
Jethro Loftus, Auburn, for respondent.
OPINION OF THE COURT
MICHAEL F. MCKEON, J.
A claim of a breach of the warranty of habitability highlights
this summary proceeding. Petitioner, owner of real property lo-
cated at 10 Lexington Avenue, Auburn, New York, seeks posses-
sion of said property for nonpayment of rent. A hearing was
held on August 2, 2007 at Auburn City Court. Subsequent to
the hearing, the court inspected the property. Both parties were
present during the inspection. The respondent admits nonpay-
ment, claiming he withheld the rent due to the failure of the
petitioner to make requested repairs and his belief those unre-
paired items breached the warranty of habitability.
The respondent took possession of 10 Lexington Avenue, a
single-family dwelling, approximately 21/2 years ago, as a month-
to-month tenant, at a rate of $600 per month. According to the
testimony of the respondent, within six months of occupying, he
began experiencing problems with a sewer backup, which
required a clean out of the sewer pipe, which has to be repeated
almost every six months, due apparently to a tree root problem.
In September of 2005, in response to complaints by the re-
spondent, petitioner was cited by the City of Auburn for several
Housing Code violations, all of which were corrected by the
petitioner within approximately one month after being cited.
Problems continued to occur, including a leaky roof, once again
culminating into a violation notice issued by the City of Auburn
dated July 12, 2007. Among the items cited included the ever
reoccurring plugged sanitary sewer, water damaged ceilings (ap-
parently caused by leaks in the roof), a rotting entrance porch