In 1050 Tenants Corp v. Lapidus, 16 Misc 3d 70, 842 N.Y.S.2d 127 (App Term, 1st Dept 2007) the Appellate Term, First Department, held that a stipulation of settlement requiring prior written notice to the landlord before a tenant could withhold rent was not an impermissible modification of RPL 235-b.
The Court held:
It is well settled that in order for a tenant to recover an abatement for breach of the warranty of habitability, the landlord must have actual or constructive notice of the existence of the condition in need of repair'. .... There is no blanket prohibition against sophisticated parties, represented by counsel, entering into a so-ordered settlement stipulation setting forth the form of the notice that must be provided before rent or maintenance is withheld..... The stipulation neither waived nor substantially impaired tenants' capacity to rely upon the warranty of habitability. (Id at 72-73.)