damage to tenant's apartment]; 157 East 57th Street LLC v. Birrenbach, NYLJ,
5/15/03, p 22, col 6, [Civ Ct NY County] [full abatement warranted where mold's size
and spread necessitated abandonment of the apartment for remediation], aff'd, 8
Misc 3d 127(A) [App Term 1st Dept 2005]; Pallotta v Perry, 2002 NY Slip Op
40328(U) [App Term 9th & 10th Jud Dists] [25% abatement warranted by roof leak
resulting in mold and mildew, a defective freezer door gasket, and oven problems]).
The credible evidence at trial demonstrates profound damage to the Apartment
rendering it materially uninhabitable from the time that the leaks began in 2005 to April
2016, when the Corporation completed the necessary repairs. The evidence shows,
during that time period, numerous leaks, damage to walls, fixtures, the terrace, and
personal items, and the accompanying complaints. The evidence shows the existence of
mold which, while remediated, nevertheless required a significant overhaul of the
Apartment. Accordingly, Plaintiff is entitled to a full abatement. That does not, however,
conclude the analysis.
2. Plaintiff's failure to mitigate her damages
The Corporation argues that its good faith attempts to inspect and repair Plaintiff's
apartment were impeded by Plaintiff's denial of access. Plaintiff argues that the Lease
permitted the Corporation's re-entry and that the Corporation had access to her key,
which Plaintiff left with the front desk. While Plaintiff is correct regarding the
Corporation's right of entry under the Lease and obligation to exercise that right, the
Court nevertheless finds in favor of the Corporation based on a finding that Plaintiff
actively impeded the exercise of the right to re-entry.
a. The Corporation's obligation to enter the Apartment for
repairs