Pleading — Amendment — Landlord and Tenant Summary Proceed-
ing — Request for Abatement
2. In a summary nonpayment proceeding which had been adjourned a
number of times over the course of two years, including many adjournments
by attorney stipulations, respondent tenant was entitled to amend his answer
to add a request for an abatement of the rent based on the alleged breach of
the warranty of habitability. Several months prior to respondent’s application
to amend the pleading, his attorney had sent an email to petitioner’s attorney,
thanking petitioner’s attorney for agreeing to adjourn the ‘‘abatement hear-
ing.’’ This email put petitioner on notice that respondent was seeking an
abatement and nothing in the court file indicated that petitioner objected to
respondent’s counsel’s position that the matter was scheduled for an abate-
ment hearing. In addition, a subsequent transfer order, which stated that ‘‘re-
sp[ondent] wants an abatement pet[ition]er does not offer anything,’’ did not
note that the petitioner offered nothing due to a lack of notice. Petitioner’s
argument that it was prejudiced by respondent’s ‘‘eve of trial’’ application was
unavailing inasmuch as the case was not ready to proceed to trial on the
return date of the motion.
Landlord and Tenant — Constructive Eviction — Breach of War-
ranty of Habitability — Damage Resulting from Hurricane Sandy
3. In a summary nonpayment proceeding, respondent tenant was not
entitled to amend his pleading to assert a defense of constructive eviction
based on lack of water, heat, electricity, and elevator service to his 13th floor
apartment caused by Hurricane Sandy. To establish a constructive eviction