Appellate Brief To be submitted by: Mark Maker

Supreme Court of the State of New York

Appellate Division: Second Judicial Department

Breezy Hollow Apartments,

Plaintiff-Respondent

Appellate Division Docket No.:

-against-

Sam Most,

Defendant, Appellant.

APPELLANT'S BRIEF

Mark Maker

Attorney for Defendant

999 Legislation Way

STATEMENT PURSUANT TO CPLR RULE 5531

The Docket Number in the Court below is: 123456.

The full names of the original parties were:

Breezy Hollow Apartment- Plaintiff v Sam Most- Defendant.

This appeal is on behalf of Sam Most, Defendant.

The action was commenced in the Supreme Court of the State of New York, 2nd Judicial Department, County of Metropolis.

4.

The action was commenced by the filing of a Petition in the Office of the Clerk of the Supreme Court on October 1, 2004.

5.

This action is against Sam Most and is a petition pursuant to ____ to collect back rent.

6.

This is an appeal by Sam Most from an order of the Metropolis County Supreme Court, (Johnson, J.), entered April 27, 2005.

7.

The appendix method is not being used herein.

8.

This appeal is on the original record [pursuant to an Order of this Court dated April 28, 2005, and filed and entered on April 29, 2005.

Table of Contents

Index of Authorities 1

Statement of Issues 2

Statement of Facts 2

Argument:

Constructive Eviction 3

Environmental Pollution 3

Conclusion 5

Relief 5

Notice of Appeal 6

Copy of Judgment Below 8

Certificate of Compliance 9

Index of Authorities

Statutes

N.Y. Real Prop. Law § 235b 2,3

N.Y. Real Prop. Law § 227a 3

Statement of Issues

The issue presented by this appeal is whether or not noise pollution, which is unabated by the landlord, constitutes the type of environmental pollution that can constructively evict a tenant.

Statement of Facts

Sam Most entered into a year-long lease at the Breezy Hollow Apartments. His next...

Because of the loud music, Sam Most could not sleep or enjoy other quiet activities in his apartment. Most informed the apartment manager Lillian Lazy, who did nothing to abate the noise. In addition, Most contacted the police. In response to visits by the police, the volume on Loud's music would temporarily be lowered. After two months, Most vacated his apartment. Breezy Hollow Apartments brought suit seeking the remainder of the rent due under the parties' contract. Most alleged that he had been constructively evicted from the apartment due to the constant loud noise.
Argument

Constructive Eviction

Constructive Eviction refers to the concept that sometimes conditions in a property are so bad that they have made it impossible for a tenant to continue using the property. The concept of constructive eviction finds support under N.Y. Real Prop. Law § 227a and 235b. Under N.Y. Real Prop. Law § 235b, "In every written or oral lease or rental agreement for residential premises the landlord or lessor shall be deemed to covenant and warrant that the premises so leased or rented and all areas used in connection therewith in common with other tenants or residents are fit for human habitation and for the uses reasonably intended by the parties and that the occupants of such premises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety" (N.Y. Real Prop. Law § 235b). Furthermore, under N.Y. Real Prop. Law § 227a, "Where any building, which is leased or occupied, is destroyed or so injured by the elements, or any other cause as to be untenantable, and unfit for occupancy, and no express agreement to the contrary has been made in writing, the lessee or occupant may, if the destruction or injury occurred without his or her fault or neglect, quit and surrender possession of the leasehold premises, and of the land so leased or occupied; and he or she is not liable to pay to the lessor or owner, rent for the time subsequent to the surrender. Any rent paid in advance or which may have accrued by the terms of…