Summary
finding breach of warranty for "excessive noise emanating from an apartment that neighbored the respondents' apartment through the late night and early morning hours"
Summary of this case from Plautz v. Eidlin-QuereOpinion
November 27, 1995
Appeal from the Civil Court, Kings County (Knipel, J.).
Ordered that the order is affirmed, with costs.
Contrary to the petitioner's contention there is sufficient evidence in the record to sustain the trial court's determination that it breached the warranty of habitability by depriving the respondents of the quiet enjoyment of their apartment. The record reveals that there was excessive noise emanating from an apartment that neighbored the respondents' apartment through the late night and early morning hours (see, Sutton Fifty-Six Co. v Garrison, 93 A.D.2d 720) and that the petitioner, despite having ample notice, failed to take any effective steps to abate the nuisance (see, Park W. Mgt. Corp. v Mitchell, 47 N.Y.2d 316, cert denied 444 U.S. 992; Cohen v Werner, 82 Misc.2d 295, affd 85 Misc.2d 341).
One of the remedies that is available to a tenant for a landlord's violation of the warranty of habitability is an abatement of the rent, and the proper measure of damages is the difference between the fair market value of the premises if they had been as warranted and the value of the premises during the period of the breach (see, Park W. Mgt. Corp. v Mitchell, supra). In this case, the respondents produced evidence regarding the nature, scope, and duration of the breach and the effectiveness of measures that were taken by the landlord to abate the nuisance. Therefore, the trial court had a sufficient basis upon which to determine the appropriate measure of damages. Accordingly, we find that the trial court did not improvidently exercise its discretion by finding that the respondents were entitled to a 50% abatement of the rent (see, Park W. Mgt. Corp. v Mitchell, supra; Ocean Rock Assocs. v Cruz, 66 A.D.2d 878; McGuiness v Jakubiak, 106 Misc.2d 317; Sargent Realty Corp. v Vizzini, 101 Misc.2d 763; Bernstein v Barrett, 101 Misc.2d 611; Kalikow Props. v Modny, NYLJ, May 2, 1978, at 5, col 1).
We have reviewed the petitioner's remaining contentions and find them to be without merit. Sullivan, J.P., Thompson, Hart and Goldstein, JJ., concur.