Opinion
March 19, 1998
Appeal from the Supreme Court, New York County (Emily Goodman, J.).
This is an action by a tenant-shareholder against his residential cooperative arising from a series of ceiling leaks allegedly caused by the overflowing of his upstairs neighbor's bathtub. Plaintiff admitted in his deposition testimony that the complained of leaks on March 15, 1989 and November 17, 1992 had not rendered his apartment uninhabitable, except for his fear of using a particular light switch later found not to be in need of repair, and further admitted that he has not experienced any leaks in his apartment since then. Therefore, his "fear and anxiety that another flood would occur while no one was on hand to summon help" and his unsupported claim that his upstairs neighbor's sinks and bathtub have inadequate overflow drains are insufficient to establish his claim for injunctive or declaratory relief for an alleged breach of the statutory warranty of habitability or to defeat defendant cooperative's cross motion for summary judgment, which is supported by the unrefuted testimony of its employees that there is no defect in the building's plumbing that caused the leaks.
Plaintiff's claim for exemplary damages arising from defendant's allegedly unwarranted billings for attorney's fees should also have been dismissed since it arises from the performance of a private agreement ( see, Morano v. Oral Research Labs., 191 A.D.2d 258; Hoyt v. Kingsford, 185 A.D.2d 770) and does not involve "wrongdoing directed at the general public or egregious culpable conduct" ( The Limited v. McCrory Corp., 169 A.D.2d 605, 608).
Concur — Sullivan, J. P., Ellerin, Wallach, Williams and Andrias, JJ.