Opinion
2002-02924
Argued May 2, 2003.
May 19, 2003.
In an action, inter alia, to recover damages for breach of the warranty of habitability, the plaintiffs appeal from a judgment of the Supreme Court, Kings County (R. Goldberg, J.), dated June 8, 2001, which, after a nonjury trial, dismissed the complaint.
Robert E. Sokolski, New York, N.Y., for appellants.
Pino Associates, LLP, White Plains, N.Y. (Vincent C. Ansaldi of counsel), for respondents.
Before: FRED T. SANTUCCI, J.P., GABRIEL M. KRAUSMAN, ROBERT W. SCHMIDT, SANDRA L. TOWNES, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed, with costs.
The plaintiffs, shareholders in a cooperative apartment, complained to the cooperative corporation which owns the apartment building, the defendant 235 Lincoln Place Housing Corp. (hereinafter the co-op), over the course of several years about the sounds of heavy walking, banging, and a washer and dryer emanating from the apartment above. The proprietary lease and house rules provide that disturbing noises are not permitted, and that rugs must cover at least 80% of the floor of the apartment. The lease also provides that the co-op is not responsible for the nonobservance of the rules by any other tenant.
The matter was not resolved to the plaintiffs' satisfaction and this action was commenced. The plaintiffs alleged that the co-op breached the warranty of habitability, the proprietary lease, and the covenant of quiet enjoyment, which constituted a private nuisance. They further alleged fraudulent misrepresentation, claiming that the individual defendants, members of the co-op's board of directors, misrepresented to them that the building was "quiet," and they were thereby induced into purchasing shares in the co-op. After a nonjury trial, the Supreme Court dismissed the complaint in its entirety. We affirm.
It is well settled that the determination of the trial court after a nonjury trial should not be disturbed on appeal unless that determination could not have been reached upon any fair interpretation of the evidence (see Thoreson v. Penthouse Intl., 80 N.Y.2d 490; Loughran v. Town of Eastchester, 299 A.D.2d 328). This is particularly proper in cases resting in large part on the credibility of witnesses (see Matter of Hartford Ins. Co. v. Khan, 279 A.D.2d 524; State Farm Mut. Auto. Ins. Co. v. Marshall, 275 A.D.2d 417).
As to the warranty of habitability, the plaintiffs failed to show that the noises they complained of were so excessive that they were deprived of the essential functions that a residence is supposed to provide (see Real Property Law § 235-b; Solow v. Wellner, 86 N.Y.2d 582; Park West Mgt. Corp. v. Mitchell, 47 N.Y.2d 316, 328, cert denied 444 U.S. 992; Protano v. 16 N. Chatsworth Ave. Corp., 272 A.D.2d 597; cf. Matter of Nostrand Gardens Co-Op v. Howard, 221 A.D.2d 637; Wortman v. Solil Mgt. Corp., 217 A.D.2d 466). As to the covenant of quiet enjoyment, the plaintiffs failed to show that they were constructively evicted from the apartment (see Barash v. Pennsylvania Term. Real Estate Corp., 26 N.Y.2d 77; Grammer v. Turits, 271 A.D.2d 644; Johnson v. Cabrera, 246 A.D.2d 578). Similarly, the plaintiffs did not establish that the co-op's action or inaction caused a substantial and unreasonable interference with their use and enjoyment of the property, and therefore failed to establish the existence of a private nuisance (see Copart Inds. v. Consolidated Edison Co. of N.Y., 41 N.Y.2d 564; Weinberg v. Lombardi, 217 A.D.2d 579; Lewis v. Stiles, 158 A.D.2d 589). As to the claim of fraudulent misrepresentation against the individual defendants, the plaintiffs failed to show that statements regarding the quietness of the building, and the co-op's handling of tenants' noise complaints, were known to be false, or that they were in fact false (see Barclay Arms v. Barclay Arms Assocs., 74 N.Y.2d 644; Jacobs v. 200 E. 36th Owners Corp., 281 A.D.2d 281). Accordingly, the complaint was properly dismissed.
The plaintiffs' remaining contentions are without merit.
SANTUCCI, J.P., KRAUSMAN, SCHMIDT and TOWNES, JJ., concur.