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Current Developments in the Commercial Divisions of the
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Posted: November 26, 2016

Warranty of Habitability Does Not Include Right to Create Additional Habitable Space

On November 22, 2016, the First Department issued a decision in Seigel v. Dakota, Inc., 2016 NY Slip Op. 07850, holding that the warranty of habitability does not include the right to create additional habitable space.

In Seigel, the plaintiff “purchased shares in defendant cooperative corporation and entered into a proprietary lease for the occupancy of Apartment 1A in 1999. The apartment included lower-level space, used by the previous tenant as an art studio, that plaintiff planned to convert into bedrooms. Plaintiff alleges that defendant was aware of and approved his plan, but later took actions to thwart it.” The First Department affirmed the trial court’s dismissal of the plaintiff’s claims, explaining:

Plaintiff alleges not that the apartment he purchased is uninhabitable but that he cannot create additional inhabitable space as he planned — a claim not encompassed by the protections of Real Property Law § 235—b (“Warranty of habitability”). His claim fails on the additional ground that he never made any bona fide attempt to reside in the building.

(Internal quotations and citations omitted).

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