Mengoni v. Passy

Order, Appellate Term of the Supreme Court, First Department (Ostrau, P. J., and Freedman, J.; Pamess, J., dissenting), entered November 21, 1997, which, in a holdover proceeding, insofar as appealed from, affirmed a judgment of the Civil Court, New York County (Anne Katz, J.), dated June 14, 1996, dismissing the proceeding after trial, unanimously affirmed, without costs.

We decline to disturb the factual determination reached by the Civil Court and a majority of the Appellate Term that the appliances and items removed and replaced or fixed by respondent — including kitchen cabinets, air conditioners, refrigerators and bathroom sink — were in a defective state, and that the landlord did not respond to tenant’s repeated complaints and demands to have the items fixed (see, Thoreson v Penthouse *204Intl., 80 NY2d 490, 495). Accordingly, the unilateral action undertaken by respondent was warranted, and was not a substantial breach of the “no alterations” clause of the lease (compare, Britton v Yazicioglu, 189 AD2d 734). Concur — Sullivan, J. P., Rosenberger, Williams and Andrias, JJ. [See, 175 Misc 2d 498.]