Supreme Court, Appellate Term, First DepartmentJan 14, 1994
160 Misc. 2d 76 (N.Y. Misc. 1994)
160 Misc. 2d 76612 N.Y.S.2d 98

January 14, 1994

Appeal from the Civil Court of the City of New York, New York County, Marilyn Shafer, J.

Gutman, Mintz, Baker Sonnenfeldt, P.C., New Hyde Park (Joanne Skiadas of counsel), for appellant.

Robert J. Huttick, respondent pro se.

Final judgment entered December 23, 1991 affirmed, with $25 costs.

In this residential nonpayment proceeding, we agree that the counterclaim for breach of the warranty of habitability interposed by the pro se tenant, although inartfully drafted, was sufficiently pleaded and that no substantial right of landlord was prejudiced (CPLR 3026; see generally, 3 Weinstein-Korn-Miller, N Y Civ Prac ¶ 3026.01).

Turning to landlord's remaining contention, we have previously held that breach of the warranty of habitability can be asserted as an affirmative claim to obtain a refund for rent already paid and in an amount in excess of the unpaid rent for which the landlord seeks recovery (N Town Roosevelt Assocs. v Muller, NYLJ, Oct. 27, 1980, at 6, col 4 [App Term, 1st Dept]; Stahl v AM PM Prods., NYLJ, Mar. 1, 1979, at 7, col 5 [App Term, 1st Dept]; 350 Assocs. v Feldman, NYLJ, Dec. 18, 1978, at 13, col 6 [App Term, 1st Dept]; see generally, 3 Rasch, New York Landlord and Tenant — Summary Proceedings § 43:41, at 148 [3d ed]).

OSTRAU, P.J., MILLER and GLEN, JJ., concur.