Defendant's argument that this cause of action should be dismissed because the only relief that plaintiff would be entitled to for a breach of warranty claim is an abatement of her maintenance, which she already has received from the court, is not persuasive. Since a warranty of habitability is part of the Proprietary Lease between the parties, just as with any breach of contract action, the injured party may be entitled to consequential or punitive damages as well as compensatory damages. Bi-Economy Market, Inc. v Harleysville Insurance Company of New York, 10 NY3d 187 (2008); Minjak Co. v Randolph, 140 AD2d 245 (1st Dept 1988). However, the extent and nature of those damages remain a question of fact for the jury.
Similarly, that branch of plaintiffs' motion seeking summary judgment on their fourth cause of action for breach of contract for defendant's failure to make repairs is also granted with respect to liability only.
There is no question that repairs have not taken place in plaintiffs' unit, which violates defendant's obligations under provisions of the Proprietary Lease quoted above. Defendant bases its opposition on Leschins v 3777 Independence Corp. (NYLJ August 17, 2009, 2009 NY Misc Lexis 2564, 242 NYLJ 33 [Sup Ct, Bronx County, Hunter, J]), in which a landlord was relieved of its repair obligations because the tenant, who was in possession, denied the landlord access to make the repairs. There is no evidence in this case that plaintiffs have ever denied defendant access, nor does defendant so allege. Defendant's contention is that plaintiffs verbally objected to some of the proposed repairs, but that objection, without plaintiffs preventing access, is insufficient to relieve defendant of its contractual duties.