Protano v. 16 North Chatsworth Avenue Corp.

709 N.Y.S.2d 415 | N.Y. App. Div. | 2000

—In an action, inter alia, to recover damages for breach of the warranty of habitability and breach of fiduciary duty, the plaintiff appeals, as limited by her brief, from so much of a judgment of the Supreme Court, Westchester County (Cowhey, J.), dated January 25, 1999, as, after a nonjury trial, in effect, dismissed the causes of action alleging breach of the warranty of habitability and breach of fiduciary duty.

Ordered that the judgment is affirmed insofar as appealed from, with costs.

We agree with the trial court that noise and vibration generated by a fuel booster located directly beneath the plaintiffs cooperative apartment did not constitute a breach of the warranty of habitability (see, Solow v Wellner, 86 NY2d 582). Moreover, the defendant’s actions relating to the installation and maintenance of the fuel booster did not amount to a breach of its fiduciary duty (see, Matter of Levandusky v One Fifth Ave. Apt. Corp., 75 NY2d 530). The court’s determination rested largely on its assessment of the credibility of the witnesses presented during the trial, and the determination was supported by a fair interpretation of the evidence (see, Matter of Liccione v John H., 65 NY2d 826; Smith v Comas, 173 AD2d 535). Ritter, J. P., Joy, S. Miller and H. Miller, JJ., concur.