nothing else, her testimony lacked specificity. Merely stating she could not use the patio due to
mud and the view next door especially when months of November through March are at issue by
Tenant raises much doubt regarding Tenant's affirmative defenses.
The Court credits both the landlord's witnesses and Tenant's own witness "Mr. P"
who testified that construction began the last week in February 2011, not October or November
2010 as claimed by Tenant. The Court finds Tenant failed to pay August 2010, December 2010,
January 2011 and February 2011 rent, long before construction began. This causes the Court to
pause and casts doubt upon the Tenant's claimed motivation for withholding rent. Accordingly,
the affirmative defenses for breach of quiet enjoyment and constructive eviction are dismissed.
Warranty of Habitability
The
warranty of habitability requires the landlord of a residential property to repair and keep the
property fit for human habitation and free from hazardous conditions. Park West
Management Corp. v. Mitchell 47 NY2d 316 (1979). If a tenant proves the warranty has
been breached the measure of damages is the difference between the fair market value of the
premises if there had been no breach and the value of the premises during the breach. Itskov
v. Rosenblum, 7 Misc 3d(A)(NY Sup App Term 2005); Forest Hills v. Schimmel
110 Misc 2d (Queens Ct Civ Ct 1981). Expert testimony is usually required to establish the
difference in value. 487 Elmwood Inc. v. Hassett,107 AD2d 285 (Forth Dept 1985).
The Court finds Landlord breached the warranty of habitability for the construction
period commencing the last week in February 2011. In 487 Elmwood v. Hassett, supra,
the Court granted a rent abatement based on the noise, vibrations and dust caused by jack