but, plaintiff contended, the damage had not been repaired
properly and, thus, he had to spend an additional $4,650 to fix
it. Defendants maintained, among other things, that they were
not required to repair plaintiff’s apartment, that any repairs
86 58 MISCELLANEOUS REPORTS, 3d SERIES
that had been made had been done gratuitously and that
plaintiff had failed to prove any negligence on their part.
Following the trial, the Civil Court dismissed the complaint.
On appeal, plaintiff argues that the court erred in dismissing
the complaint because he had established his right to recover
as a matter of law based on defendants’ breach of Multiple
Dwelling Law § 78, the proprietary lease, the warranty of
habitability, and an oral contract between himself and defend-
ant Eissenberg, personally and as a representative of 1802 and
Newport.
Pursuant to Multiple Dwelling Law § 78, the owner of a
multiple dwelling owes a nondelegable ‘‘duty to persons on its
premises to maintain them in a reasonably safe condition’’ and
is liable to anyone injured ‘‘even though the responsibility for
maintenance has been transferred to another’’ (see Mas v Two
Bridges Assoc., 75 NY2d 680, 687-688 [1990]). However,
Multiple Dwelling Law § 78 does not entitle a tenant to make
repairs
‘‘which he claims the statute require[s] the lessor
to do, and to [sue] for the value of such work on the
theory of breach of contract. . . . Even if the statu-
tory duty could be said to have been imposed for
the benefit of one in [tenant’s] position, the tenant
might waive same’’ (Emigrant Indus. Sav. Bank v
108 W. 49th St. Corp., 255 App Div 570, 576 [1938],
affd 280 NY 791 [1939]; see Davar Holdings, Inc. v
Cohen, 255 App Div 445 [1938], affd 280 NY 828
[1939]; Garcia v Freeland Realty, 63 Misc 2d 937