Plaintiff testified that she moved her personal belongings into the subject premises because she had to move out of her prior apartment by May 31, 2019, and she had paid defendant [*5]for first month's rent for June 2019. Plaintiff testified that after moving her furniture and belongings into the subject apartment she was not living there but staying at her boyfriend's house and was only using the apartment to store her personal property. Ms. Kelly testified that not having a working shower would be "an inconvenience," but that plaintiff had refused to have Empire's maintenance staff repair the problem with the shower.{**65 Misc 3d at 898}
Pursuant to Real Property Law § 223-a (remedies of lessee when possession is not delivered), "there shall be implied in every lease of real property a condition that the lessor will deliver possession at the beginning of the term. In the event of breach of such implied condition the lessee shall have the right to rescind the lease and to recover the consideration paid." In the instant case, the court finds that based on the condition of the apartment when defendant gave plaintiff the keys to the apartment, which included a nonworking shower, defendant violated section 223-a of the Real Property Law. Accordingly, as a matter of law, plaintiff had the right to rescind the subject lease, and she availed herself of that right when she demanded the return of her monies and claimed that there was no longer a valid lease between the parties. However, defendant's agent improperly refused to refund plaintiff's June rent money and security deposit.