indicates that, but for the month of April 1995, the tenants have declined to pay rent since the appointment of the receiver in August 1994. Responding to the receiver’s motion for a "writ of assistance” to compel the payment of rents, Supreme Court issued a decision in June 1995 which rejected the tenants’ claims and found that the receiver was an officer of the court rather than an agent of the owner or mortgagor; that the receiver must look to rental payments to operate and to preserve the property; and that the tenants may not withhold rent payments. In July 1995, the court issued an order compelling payment of past rent due on pain of eviction from the premises. The tenants appealed.
The receiver has argued that he is not bound by the claims under warranty of habitability because this motion and order were made in the context of a foreclosure action, rather than in a landlord-tenant proceeding before the Civil Court. This procedural nicety, the receiver alleges, protects him from the obligation of a landlord to fulfill the warranty of habitability under the lease. To assuage the claims of injustice under this view, the receiver has argued that the tenants may recover under the warranty of habitability against the landlord in a separate proceeding.