Brown's first complaint has to do with the common area of the apartment building being unkept.[*5] The chief complaint that he made to MLR was that another tenant, who had a dog, caused the common area to be littered with the animal's hair. Moreover, Brown said that the dog hair was not properly and regularly removed. He testified that his lease forbade him from having pets and the presence of the dog and its hair represented a health concern to him—although nothing in the lease promises that the apartment building would be pet free. Additionally, the court notes that Brown never testified that he suffered from allergies from being around the dog hair.
The dog hair complaint does not fall within the ambit of the warranty of habitability (Real Property Law § 223-b [2]). Pursuant to Real Property Law § 235-b, every residential lease contains an implied warranty of habitability which is limited by its terms to 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. Dog hair in the common area while undesirable does not subject Brown to illness nor inhibits his ability to enjoy living inside his apartment. The Court of Appeals has held that the warranty "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] [citation and internal quotation marks omitted]). Therefore, the court finds that Brown failed to prove the first