| Armstrong v Archives L.L.C. |
| 2007 NY Slip Op 10468 [46 AD3d 465] |
| December 27, 2007 |
| Appellate Division, First Department |
| Celine M. Armstrong, Respondent, v Archives L.L.C.,Appellant. |
—[*1] Pryor Cashman LLP, New York City (Eric D. Sherman of counsel), for respondent.
Order, Supreme Court, New York County (Walter B. Tolub, J.), entered May 18, 2007,which granted plaintiff tenant partial summary judgment on her causes of action for breach of theimplied warranty of habitability and for a declaratory judgment that she rightfully terminated herlease and is not liable for further rent, and dismissed defendant landlord's defenses andcounterclaim, unanimously reversed, on the law, without costs, the motion denied, anddefendant's affirmative defenses and counterclaim for attorneys' fees reinstated.
Contrary to the motion court's finding, the affidavits submitted by defendant raise materialissues of fact as to whether the alleged noise emanating from a neighboring apartment was "soexcessive that [plaintiff was] deprived of the essential functions that a residence is supposed toprovide" (Kaniklidis v 235 Lincoln Place Hous. Corp., 305 AD2d 546, 547 [2003],citing, inter alia, Real Property Law § 235-b [1]; Solow v Wellner, 86 NY2d 582[1995]; and Park W. Mgt. Corp. v Mitchell, 47 NY2d 316, 328 [1979], certdenied 444 US 992 [1979]). Plaintiff's showing that many complaints were made is not alonesufficient to establish a breach of the warranty of habitability. Nor does defendant's notice of curereciting the dates and substance of noise complaints against the offending tenant constitute aconclusive admission or proof that the alleged noise rose to the level of a breach of the warrantyof habitability. Additionally, plaintiff's claim that defendant did nothing to address hercomplaints is contradicted by defendant's evidence that its agents, including a porter and thedoormen, assisted plaintiff on numerous occasions by calling the offending tenant and going tohis apartment in response to her complaints and setting up meetings to explore her relocationoptions to another apartment in the building, and that defendant's counsel wrote letters to, andserved a notice to cure upon, the offending tenant. While it may be ultimately proven thatdefendant breached the implied warranty of habitability, the present record does not as a matterof law establish it (cf. Matter of Nostrand Gardens Co-Op v Howard, 221 AD2d 637[1995]; Witherbee Ct. Assoc. v Greene, 7 AD3d 699 [2004]). For the same reasons thatsummary judgment is denied on the cause of action for breach of the warranty of habitability,summary judgment is denied on plaintiff's cause of action for a declaratory judgment as well(see Joseph [*2]P. Day Realty Corp. v Franciscan Sisters forPoor Health Sys., 256 AD2d 134 [1998]). Concur—Saxe, J.P., Friedman, Sweeny,McGuire and Malone, JJ. [See 2007 NY Slip Op 31261(U).]