
    [64 NYS3d 453]
    Maria Mateo, Respondent, v Julius Anokwuru, Appellant.
    Supreme Court, Appellate Term, First Department,
    October 11, 2017
    APPEARANCES OF COUNSEL
    
      Laurence M. Savedoff, PLLC, Bronx (Laurence M. Savedoff of counsel), for appellant.
    
      
      Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York City, for respondent.
   OPINION OF THE COURT

Per Curiam.

Judgment, entered on or about February 12, 2016, reversed, without costs, and matter remanded for a new trial on damages.

Plaintiff tenant leased a studio apartment in a house owned by defendant owner. Defendant subsequently relocated plaintiff to a basement “apartment” in the house, which was not a legal residential unit. In March 2014, the New York City Department of Housing Preservation and Development issued a vacate order requiring plaintiff to vacate the basement unit within one day. This action arises from plaintiff’s residence in that basement unit.

A fair interpretation of the evidence supports the trial court’s conclusion that the conditions in the basement were “deplorable and disgusting.” However, the court applied an incorrect measure of damages when it awarded tenant a refund of some 35 months of rent. Having received the benefit of shelter, plaintiff is not entitled to recover the rent paid (see Elkar Realty Corp. v Kamada, 6 AD2d 155 [1958]; Goho Equities v Weiss, 149 Misc 2d 628 [App Term, 1st Dept 1991]; Schotz-Powers Co., Inc. v Treidler, 128 Misc 466 [App Term, 1st Dept 1926]).

When the warranty of habitability is breached, a tenant may seek an abatement irrespective of whether the unit is a lawful dwelling. The correct measure of damages for breach of the warranty of habitability “is the difference between the fair market value of the premises if they had been as warranted, as measured by the rent reserved under the lease, and the value of the premises during the period of the breach” (Park W. Mgt. Corp. v Mitchell, 47 NY2d 316, 329 [1979], cert denied 444 US 992 [1979]). The matter is remanded for a new trial limited to the issue of damages.

Lowe, III, P.J., Shulman and Gonzalez, JJ., concur.  