Summary
In 815 Park Avenue Owners Corp, Inc. v. Lapidus (227 A.D.2d 353) the Appellate Division held that a proprietary lessee was not entitled to set offs against maintenance owed on an apartment based on water damage to the apartment where the lessee failed to show that water entered the apartment as a result of the lessor's negligence or violation of the proprietary lease.
Summary of this case from 170 W. End Ave. Owners Corp v. TurchinOpinion
May 30, 1996
Appeal from the Supreme Court, New York County (Elliott Wilk, J.).
Defendant-appellant ceased paying maintenance and assessments on his cooperative apartment in November 1987 based upon his claim that a partial eviction resulted from water entering his apartment. In a prior appeal, this Court affirmed a grant of summary judgment dismissing the partial eviction defense ( 190 A.D.2d 574). Issues regarding defendant's claimed setoffs against the maintenance owed were referred to a Special Referee to hear and report. After extensive hearings, the Referee correctly found that defendant had failed to show that water entered his apartment as a result of plaintiff's negligence or violation of the proprietary lease. Moreover, defendant failed to demonstrate the necessity of the repairs he allegedly made or the reasonable cost thereof ( see, Parilli v. Brooklyn City R.R., 236 App. Div. 577; Halkedis v. Two E. End Ave. Apt. Corp., 161 A.D.2d 281, lv denied 76 N.Y.2d 711). Nor did defendant demonstrate by competent proof that employees of Manhattan Cable TV turned off the refrigeration unit on his wine cellar, or why plaintiff should be held responsible if that indeed occurred. Defendant also failed to show the condition of the wine before the alleged tampering with the temperature control, or the value of the wines allegedly damaged thereby.
The lease provides that, upon default in payment of rent, "the Lessee shall pay interest thereon at the maximum legal rate from the date when such installment shall have become due to the date of payment thereof, and such interest shall be deemed additional rent hereunder." Accordingly, the imposition of interest at the rate of 1.5% monthly was permissible ( see, Stein v. American Mtge. Banking, 216 A.D.2d 458; Emery v. Fishmarket Inn, 173 A.D.2d 765; Bruce v. Martin, 845 F. Supp. 146, 149 [SD NY]). We have considered defendant's remaining arguments and find them to be without merit.
Concur — Milonas, J.P., Rosenberger, Kupferman, Williams and Mazzarelli, JJ.