Opinion
2147
November 13, 2003.
Judgment, Supreme Court, New York County (Robert Lippmann, J.), entered March 18, 2002, which awarded plaintiff the principal amount of $326,842.13, unanimously modified, on the law, to vacate a 50% rent abatement for a two-week period based on conditions in defendants' apartment in the amount of $1,591.22 and the award of $5000 for attorneys' fees, and remand the matter for a hearing to determine the actual amount of counsel fees, and otherwise affirmed, without costs.
Jeffrey Turkel, for plaintiff-respondent-appellant.
Alfred Ferrer III, for defendants-appellants-respondents.
Before: Tom, J.P., Saxe, Rosenberger, Williams, Gonzalez, JJ.
The record in this protracted litigation (see Solow v. Wellner, 86 N.Y.2d 582) supports plaintiff's entitlement to the rent arrears awarded, any evidentiary shortcomings in its prima facie case having been resolved at trial. Plaintiff is entitled to interest on the arrears since defendants' purported tenders pursuant to CPLR 3219 were conditional and, thus, did not stop the accrual of interest (see Cohen v. Transcontinental Ins. Co, 262 A.D.2d 189, 190-91). Defendants' counterclaim for breach of an express warranty is not viable (Solow v. Wellner, at 589). As to the breach of the warranty of habitability (Real Property Law § 235-b), the evidence reflects a diminution in the value of the common areas due to inadequate and unreliable elevator service in this high-rise apartment building over a period of five years, warranting a 5% rent abatement (see Park W. Mgt. Corp. v. Mitchell, 47 N.Y.2d 316, 329-330, cert denied 444 U.S. 992; Solow v. Wellner, 154 Misc.2d 737, 741, affd in part 205 A.D.2d 339, affd 86 N.Y.2d 582). However, in view of the finding that plaintiff promptly made any necessary repairs, the 50% abatement granted defendants for buckling floors during a two-week period is without foundation (see Solow v. Wellner, 154 Misc.2d, at 740-741). While the court properly found plaintiff to be the prevailing party (see Duell v. Condon, 84 N.Y.2d 773, 778; Peachy v. Rosenzweig, 215 A.D.2d 301, 302), a hearing is required to determine the amount of attorneys' fees actually incurred by plaintiff (see Zimiles v. Hotel Des Artistes, 216 A.D.2d 45).
We have considered the parties' remaining contentions for affirmative relief and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.