apartment conditions, especially in view of the negative inference arising from landlord's
failure to produce the building superintendent as a witness (see 318 East 93, LLC v
Ward, 276 AD2d 277, 278 [2000]), and landlord's own acknowledged deficiencies
in its system of recording tenant complaints. The amount of the habitability abatement,
although substantial, was within reasonable limits, given the severity of the conditions
and the largely unrefuted evidence elicited by the tenant as to the duration of the
conditions (see Park W. Mgt. Corp. v Mitchell, 47 NY2d 316 [1979], cert
denied 444 US 992 [1979]; see also Dumbadze v Saxon Hall Owner, LLC,
93 AD3d 756 [2012]).
The record also supports the court's express finding that tenant was constructively
evicted from the premises for the 20-day period following the collapse of the living room
ceiling. Contrary to landlord's claim, the parties' January 15, 2013 stipulation - covering
"hotel expenses, meals, repair[s]" - should not be read so broadly as to preclude the trial
court from suspending tenant's obligation to pay rent for the period of the constructive
eviction, a remedy otherwise [*2]shown to be warranted
in the circumstances here present.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: December 19,
2013