Adler v Ogden CAP Props.

Appellate Division of the Supreme Court, First Department

Mar 17, 2015

14526 650292/13

Versions:

Lowey Dannenberg Cohen & Hart, P.C., White Plains (Barbara J. Hart of counsel), for appellants.

Herrick, Feinstein LLP, New York (Janice Goldberg of counsel), for respondents.

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered on or about December 13, 2013, which to the extent appealed from as limited by the briefs, granted defendants’ motion for summary judgment dismissing plaintiffs Lauren Shoenfeld‘s and Perri Steiner‘s breach of the warranty of habitability claim, and limited the scope of the proposed class of plaintiffs, unanimously affirmed, without costs.

The motion court correctly granted summary judgment dismissing plaintiffs’ claim that defendants breached the warranty of habitability set forth in Real Property Law § 235-b because plaintiffs’ respective residential apartments lacked electricity during and after Hurricane Sandy. Plaintiffs left their apartments before they lost electricity and they did not return until after the electricity had been restored (see Genson v Sixty Sutton Corp., 74 AD3d 560, 560 [1st Dept 2010]). In addition, there is no evidence that either plaintiff left their units due to a condition that rendered them uninhabitable or unusable for their intended function of residential occupation (see Solow v Wellner, 86 NY2d 582, 588-589 [1995]).

We have considered plaintiffs’ remaining arguments, including that the court improperly limited the proposed class of plaintiffs, and find them unavailing. Concur—Sweeny, J.P., Renwick, Saxe, Manzanet-Daniels and Gische, JJ.