relief they
were seeking through consolidation. This proceeding was
put on hold while the Supreme Court Action was litigated, and the understanding was that
Respondents' claims regarding breach of warranty of habitability and for repairs would be
litigated in the context of the Supreme Court Action.
Further evidence that Respondents understood the dismissal of the complaint in
Supreme
Court to encompass their cause of action for warranty of
habitability is found in Respondents' motion for renewal and reargument of Judge York's
decision awarding Petitioner summary judgment and dismissing the complaint in its entirety.
In his October 23, 2008 affirmation in support of said motion, counsel for
Respondents
argued that Judge York made a mistake dismissing the
warranty of habitability claim on summary judgment. The affirmation cites to RPL 235 b and
states "the statute applies to cooperative apartment owners as well, and damages are awarded in
the form of abatement of rent (Par 20, 10/23/08, Nigen, aff in support). Mr. Nigen argues
that Petitioner was on notice of the condition and failed to take reasonable actions to address the
condition. The affirmation ends by asserting "(i)n conclusion, defendants breached their duty of
warranty of habitability by failing to correct the harmful water damage and/or mold conditions in
Plaintiffs' apartment and they are responsible for any ensuing damages. In the least, a question of
fact exists as to these claims, and therefore, summary judgment was not appropriate and should
have been denied (Par 27-28, Nigen, aff in sup, 10/23/08).[FN4] "
It is well settled that a motion for summary judgment, which is granted and results in the
dismissal of the complaint, is a disposition on the merits for purposes of res judicata