Opinion
05-04-2017
Susan REINHARD, Plaintiff–Respondent, v. CONNAUGHT TOWER CORPORATION, Defendant–Appellant, Arthur S. Olick, Defendant. Real Estate Board of New York, Amicus Curiae.
Gartner + Bloom, PC, New York (Arthur P. Xanthos of counsel), and Axelrod, Fingerhut & Dennis, New York (David L. Fingerhut of counsel), for appellant. London Fischer LLP, New York (Daniel Zemann, Jr. of counsel), for respondent. Stroock & Stroock & Lavan LLP, New York (Eva Talel of counsel), for amicus curiae.
Gartner + Bloom, PC, New York (Arthur P. Xanthos of counsel), and Axelrod, Fingerhut & Dennis, New York (David L. Fingerhut of counsel), for appellant.
London Fischer LLP, New York (Daniel Zemann, Jr. of counsel), for respondent.
Stroock & Stroock & Lavan LLP, New York (Eva Talel of counsel), for amicus curiae.
Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered February 1, 2016, which, to the extent appealed from as limited by the briefs, after a nonjury trial, found defendant Connaught Tower Corporation liable and awarded plaintiff certain maintenance payments, interest, and reasonable attorneys' fees, unanimously reversed, on the law and the facts, without costs, the finding of liability and award vacated, the complaint dismissed, and the matter remanded for a hearing and determination as to Connaught's attorneys' fees. Appeal from order, same court and Justice, entered August 3, 2016, which, to the extent appealed from, granted plaintiff's motion for reargument, unanimously dismissed, without costs, as academic.
The finding of liability against Connaught, the owner of a cooperative building in which plaintiff purchased shares, was not based on a fair interpretation of the evidence (see Thoreson v. Penthouse Intl., 80 N.Y.2d 490, 495, 591 N.Y.S.2d 978, 606 N.E.2d 1369 [1992] ). The evidence failed to show that the odor of cigarettes rendered plaintiff's apartment uninhabitable, breached the proprietary lease, or caused plaintiff to be constructively evicted. In particular, plaintiff's evidence failed to show that the odor was present on a consistent basis and that it was sufficiently pervasive as to materially affect the health and safety of occupants (see Park W. Mgt. Corp. v. Mitchell, 47 N.Y.2d 316, 327–328, 418 N.Y.S.2d 310, 391 N.E.2d 1288 [1979], cert. denied 444 U.S. 992, 100 S.Ct. 523, 62 L.Ed.2d 421 [1979] ). Plaintiff's witnesses testified that they smelled smoke in the apartment on a handful of occasions over the years, and the source of the smoke was never identified. Moreover, plaintiff lived in Connecticut, near her workplace, and only intended to stay in the apartment occasionally (see Leventritt v. 520 East 86th St., 266 A.D.2d 45, 45–46, 698 N.Y.S.2d 20 [1st Dept.1999], lv. denied 94 N.Y.2d 760, 706 N.Y.S.2d 80, 727 N.E.2d 577 [2000] ; Halkedis v. Two E. End Ave. Apt. Corp., 161 A.D.2d 281, 282, 555 N.Y.S.2d 54 [1st Dept.1990], lv. denied 76 N.Y.2d 711, 563 N.Y.S.2d 767, 565 N.E.2d 516 [1990] ).
Plaintiff correctly conceded at oral argument that her claim of constructive eviction is time-barred (see Kent v. 534 E. 11th St., 80 A.D.3d 106, 111–112, 912 N.Y.S.2d 2 [1st Dept.2010] ).
Connaught is entitled to attorneys' fees pursuant to CPLR 3220. Accordingly, we remand for a hearing and determination as to those fees. RICHTER, J.P., ANDRIAS, MOSKOWITZ, FEINMAN, KAPNICK, JJ., concur.