Co-op Subtenant Gets 60 Percent Rent Abatement

Tenant shareholder in a co-op building sued to evict subtenant for nonpayment of rent. Subtenant claimed breach of the warranty of habitability. The trial court ruled against tenant, gave subtenant a 100 percent rent abatement, and awarded subtenant attorney's fees totalling $28,650.

Tenant appealed and won, in part. The co-op building landlord closed subtenant's ground-floor terrace/patio area so that the area could be used as a staging area for the erection of scaffolding to perform mandatory Local Law 11 repair work on the building facade. The subtenant properly asserted the warranty of habitability defense against tenant shareholder even though the cause was beyond tenant's control. However, the 100 percent rent abatement was excessive. While subtenant lost use of the patio/terrace for four months, the apartment interior was still habitable and subtenant remained in possession during that period. The court reduced the rent abatement to 60 percent. Subtenant was completely deprived of the use of the patio area, which was twice the size of the apartment. The scaffolding work and dust also prevented her from opening her windows and reduced the amount of light and ventilation in the apartment. The amount of attorney's fees awarded was reasonable.

Israel Realty LLC v. Shkolnikov: 59 Misc.3d 148(A), 2018 NY Slip Op 50812(U) (App. T. 1 Dept.; 6/6/18; Shulman, PJ, Gonzalez, Edmead, JJ)