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.[FN*] 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 residential lease is a warranty of habitability, which includes three covenants: "(1) that the premises are 'fit for human habitation', (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 tenants or deficiencies that 'in the eyes of a reasonable person . . . deprive the tenant of those essential functions which a residence is expected to provide' " (Solow v Wellner, 86 NY2d 582, 588 [1995], quoting Park W. Mgt. Corp. v Mitchell, 47 NY2d 316, 327 [1979]).