WESTON, J.P. (dissenting and voting to affirm the judgment
in the following memorandum). I disagree with the majority’s
finding of a breach of the implied warranty of habitability. In
my opinion, plaintiff never asserted a claim for breach of the
implied warranty of habitability either in his complaint or at
oral argument, but rather confined his challenge to the quality
of the repairs.* Even if such a breach were alleged, I would find
that plaintiff failed to show how his health or well-being had
been affected by the allegedly poor repairs.
Pursuant to Real Property Law § 235-b, implied in every res-
idential lease is a warranty of habitability, which includes
three covenants: ‘‘(1) that the premises are ‘fit for human habi-
tation’, (2) that the premises are fit for ‘the uses reasonably
intended by the parties’, and (3) that the occupants will not be
subjected to conditions that are ‘dangerous, hazardous or
detrimental to their life, health or safety’ ’’ (Solow v Wellner, 86
NY2d 582, 587-588 [1995], quoting Real Property Law § 235-b).
The implied warranty of habitability ‘‘protects only against
conditions that materially affect the health and safety of ten-
ants or deficiencies that ‘in the eyes of a reasonable person . . .
deprive the tenant of those essential functions which a resi-
dence is expected to provide’ ’’ (Solow v Wellner, 86 NY2d 582,
588 [1995], quoting Park W. Mgt. Corp. v Mitchell, 47 NY2d
316, 327 [1979]).
Although plaintiff, on appeal, contends that the Civil Court
failed to consider a claim for breach of implied warranty of
* Plaintiff ’s summons with endorsed complaint alleges, in relevant part,
‘‘Breach of Contract or Warranty for $25,000.’’
88 58 MISCELLANEOUS REPORTS, 3d SERIES
habitability, there was no need for the court to do so, since