Circumstances Under Which Claim for Breach of Warranty of Habitability Can Be Dismissed
In Frisch v. Bellmarc Mgt. (190 AD2d 383 [1st Dept 1993]), the Court held the plaintiff could not avail himself of the statutory warranty of habitability since he did not personally reside in the unit (citing Halkedis v. Two E. End Ave. Apt. Corp., supra) and had purchased same as a real estate investment without any intent of ever occupying it. In 25 W. 13th St. Corp. v. Gerevitz (128 Misc 2d 74 [Civ Ct, NY County 1985]), petitioner (the cooperative) sued respondents (proprietary leaseholders) for maintenance.
Respondents had sublet their apartments.
The occupants (the subtenants) did not appear or make any claim under the warranty of habitability. Respondents admitted that the subtenants had continued to pay their rent in full.
Under those circumstances, the court felt it would constitute a windfall for respondents to collect their rent in full and at the same time receive an abatement of their maintenance.
The court dismissed their claim for breach of warranty of habitability. the court specifically noted it made no decision regarding the situation where an occupant is a party, but not the tenant or lessee.