Lindville Housing Co. v. McGann

Order of the Appellate Term of the Supreme Court, First Department (Parness, J. P., McCooe and Freidmann, JJ.), entered June 20, 1996, which, insofar as appealed from, affirmed a judgment of the Civil Court, Bronx County (Howard Trussel, J.), entered on or about May 19, 1994, awarding petitioner $9,501.70 in maintenance arrears, unanimously affirmed, without costs.

Petitioner did not have a duty to mitigate the amount of unpaid maintenance by processing respondent’s application for section 8 benefits while respondent’s application to become a successor tenant was pending before the Department of Housing Preservation and Development. A section 8 application would be premature until such time as respondent achieves the status of tenant. In the meantime she is liable for use and occupancy equal to the maintenance paid by the prior tenant (28 RCNY 3-02 [p] [8] [iii]). Respondent’s unresolved status also renders premature her claim that she was constructively evicted by what she characterizes as petitioner’s “constant stream of admonishments” that she had no right to remain in the apartment; in any event, such admonishments, assuming their accuracy as described by respondent, do not amount to a constructive eviction. Concur—Sullivan, J. P., Ellerin, Nardelli, Williams and Andrias, JJ.