Opinion
June 12, 1974
Appeal from the Civil Court of the City of New York, County of New York, LEONARD H. SANDLER, J.
Samuel Steinberg, appellant in person.
Daniel Finkelstein for respondents.
While the trial court, consistent with the authority of Levine v. Ehrenberg (N.Y.L.J., June 11, 1973, p. 18, col. 2 [App. Term, 1st Dept.]) was justified, in the circumstances of this case, in finding for tenants on the counterclaims, nevertheless, there was a lack of adequate proof of the reduced value of the apartments as a result of the landlord's failure to supply heat ( Borchardt v. Parker, 108 N.Y.S. 585 [App. Term, 1st Dept.]; see, also, 1900-51st St. Corp. v. Dennis, 182 Misc. 127 [App. Term, 2d Dept.]; Jackson v. Paterno, 58 Misc. 201 [App. Term, 1st Dept.], affd. 128 App. Div. 474; Levine v. Ehrenberg, supra).
I concur only under constraint of Levine v. Ehrenberg (N.Y.L.J., June 11, 1973, p. 18, col. 2 [App. Term, 1st Dept.]) implicitly overruling our earlier decision in Orlowsky v. East House Enterprises ( 32 Misc.2d 664).
FRANK, J.P., and DUDLEY, J., concur in Per Curiam opinion; QUINN, J., concurs in memorandum.
Final judgments, to the extent appealed from, reversed without costs and new trial ordered, limited to the issue of the amounts due as setoffs against the rent arrears.