Fields v Adelman (2012 NY Slip Op 50634(U))

Fields v Adelman

2012 NY Slip Op 50634(U) [35 Misc 3d 130(A)]

Decided on April 4, 2012

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Damon Fields, Respondent, —

against

Elkanah Adelman and DEBBIE ADELMAN Also Known as DEBRA ADELMAN, Appellants.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered February 15, 2011. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $3,000.

ORDERED that the judgment is modified by reducing the amount of the award in favor of plaintiff to the principal sum of $100; as so modified, the judgment is affirmed, without costs.

In this action to recover, among other things, rent arrears and electricity charges for June and July 2010, the Civil Court, following a nonjury trial, awarded plaintiff monthly rent of $1,400 for June and July 2010, and electricity charges of $100 per month for June and July 2010, for a total award in the principal sum of $3,000. However, defendants established at trial that a prior nonpayment proceeding to recover May and June 2010 rent had been dismissed, as it had been determined therein, based on the Department of Buildings' placement of violations, that the building in which the apartment in question is located was an illegal multiple dwelling. Thus, it was res judicata that plaintiff was not entitled to recover the June 2010 rent of $1,400. Moreover, as there is a presumption that the violations continued in July 2010 (see Administrative Code of City of NY § 27-2115 [k] [1]; Mackof v 407-413 Owners Corp., 19 Misc 3d 131[A], 2008 NY Slip Op 50576[U] [App Term, 1st Dept 2008]), and as plaintiff did not introduce a certificate of correction or otherwise show that the violations had been corrected, plaintiff was also not entitled to recover the July 2010 rent (see Multiple Dwelling Law § 302 [1] [b]; § 325 [2]; Jalinos v Ramkalup, 255 AD2d 293 [1998]; Misir v Gilbert, 19 Misc 3d 136[A], 2008 NY Slip Op 50742[U] [App Term, 2d & 11th Jud Dists 2008]). In addition, it was error for the court to award plaintiff $100 for electricity charges for July 2010, as defendants did not reside in the premises in that month. Accordingly, the judgment is modified by reducing the amount awarded plaintiff to the principal sum of $100.