Appeal from a final judgment of the Civil Court of the City of New York, Kings County (Bruce E. Scheckowitz, J.), entered June 2, 2005. The final judgment awarded landlord possession and the sum of $7,110.46 in a nonpayment summary proceeding.

Final judgment modified by reducing the amount of the monetary award in favor of landlord to the sum of $4,266.28; as so modified, affirmed without costs.

In this nonpayment proceeding seeking rent for January 2004 through May 2005, the court limited tenant's abatement for landlord's breach of the warranty of habitability to five percent because it found that tenant had notified landlord only infrequently of the conditions in her apartment and that she did not provide access to her apartment so that landlord could eliminate the roach infestation therein and replace the lower kitchen cabinet, which the exterminator had removed. Contrary to the findings of the lower court, however, the record establishes that landlord was fully aware of the severe vermin infestation in tenant's apartment and that its efforts to correct the condition, such as by providing tenant with ant spray, were ineffectual. In fact, a class "B" violation had been placed on the premises in March 2002 for the vermin infestation, and another such violation was placed in 2005. Moreover, in a prior nonpayment proceeding between the parties two years before the instant proceeding, tenant was awarded approximately a 30% abatement for the conditions in the apartment, including the vermin infestation. In addition, tenant testified that although landlord's exterminator tore out her kitchen cabinet and sprayed, the roaches were still there, that she cannot cook in the kitchen, and that she keeps all her food in the living room in cartons. She stated that the vermin infestation has been a continuing problem since 2001 and that landlord has failed to remedy the condition even though she has requested that it do so. She also established that there are several other violations of record which have not been corrected. [*2]

We also find insufficient support in the record for the court's finding that tenant refused to provide access so that landlord could repair the conditions. Landlord introduced no proof to establish the dates and times that it requested access and its requests were refused. In fact, the only relevant evidence on this point was tenant's admission that she was not available when the superintendent sought access in April 2005 to replace the kitchen cabinet that had been removed. As the arrears sought and the conditions in the apartment needing repair cover the period from January 2004 through May 2005, this testimony is insufficient to support a finding that the abatement should be limited because of a denial of access. Consequently, an abatement of 40% of the total arrears of $7,484.09 is granted to tenant for landlord's breach of the warranty of habitability.

Pesce, P.J., and Golia, J., concur.

Rios, J., concurs in a separate memorandum.

Rios, J., concurs in the following memorandum:

The issue raised by tenant-appellant on this appeal involves the adequacy of the lower court's award of an abatement of rent premised on a breach of the warranty of habitability. Prior to my commenting on the sufficiency of the award, a review of the origin of the concept of the warranty of habitability, and the role of the housing judge in the determination of the abatement is needed.

Before the enactment in New York in 1975 of Real Property Law § 235-b, it was well settled that the common-law rule of caveat lessee was no longer applicable to the modern urban apartment dweller. The rule which placed the burden of repair on the tenant was no longer valid because a city dweller's interest in an apartment was in having a suitable shelter replete with adequate heat, water, serviceable plumbing and proper sanitation and, unlike in the agrarian community, had nothing to do with "the land" (Javins v First Nat. Realty Corp., 428 F2d 1071, 1077 [1970], cert denied 400 US 925 [1970]). It therefore became universally held that a tenant's contractual obligation to pay rent was dependent on the landlord's performance of his reciprocal obligation, which included his warranty to maintain the demised premises in a habitable condition (see Tonetti v Penati, 48 AD2d 25 [2d Dept 1975]; Derr v Cangemi, 66 Pa D & C 2d 162 [1974]; Boston Hous. Auth. v Hemingway, 363 Mass 184 [1973]; Berzito v Gambino, 63 NJ 460 [1973]; Marini v Ireland, 56 NJ 130 [1970]; LeClair v Woodward, 6 Conn Cir 727, 316 AD2d 791 [1970]). It was with the courts' acceptance of the contractual theory of mutual obligation that tenants were permitted to offset a landlord's claim for rent with their [*3]demands for an abatement (see Morbeth Realty Corp. v Rosenshine, 67 Misc 2d 325 [1971]).

In New York, the Court of Appeals recognized that the appropriate measure of damages for a breach of the warranty of habitability was not susceptible to a precise determination and that a case by case calculation would be warranted employing four factors: (1) severity of the conditions, (2) notice to the landlord, (3) duration of the condition of disrepair after notice to the landlord, and (4) the effectiveness of the efforts by the landlord to remedy the disrepair (Park West Mgt. Corp. v Mitchell, 47 NY2d 316 [1979]).

In 1972, the New York State Legislature authorized an amendment to the New York City Civil Court Act to permit the creation of a special residential landlord/tenant part devoted to actions and proceedings involving the enforcement of state and local laws for the establishment of housing standards..." (CCA 110 [a]). This Housing Part was to be presided over by hearing officers (now housing judges) who were empowered to adjudicate summary proceedings for the nonpayment of rent and authorized to employ any remedy...authorized by law for the enforcement of housing standards" (CCA 110 [c]). As the years passed, the assertion by tenants of their claims for abatements based on the breach of warranty increased before the housing judges, and it became common for housing inspections to be ordered. In keeping with their inherent authority to fashion any procedure to accomplish their mandate of maintaining housing standards, housing judges themselves conducted inspections of premises in the presence of litigants to more adequately evaluate the respective claims of the parties.

In the case on appeal, the record reflects that appellant at trial alleged that her apartment was infested by roaches to the extent that her ability to use her kitchen stove was inhibited. In addition, she averred a lack of heat in the winter; that the kitchen cabinets had been removed; the wall tiles were cracked; the plumbing leaked and that there was inadequate water pressure in the bath. Despite these claims of substandard housing, the trial judge failed to conduct an on-site inspection of the premises, notwithstanding the undisputed claim that a prior nonpayment proceeding in February 2003 had resulted in a 30% abatement.

An on-site inspection by the court inures to the benefit of all parties. Neither litigant has the opportunity to alter the facts. The court, upon arriving at the demised premises, gets to see for itself the state of the apartment and neither side gains an advantage or is prejudiced. If the court had adjourned the trial for an hour and reconvened at the apartment for an inspection, issues of fact regarding the actual condition of the apartment and the severity of the conditions would have been resolved. Instead, relying on a minimum record, the trial court awarded a mere 5% abatement for conditions which appear to have been in place since before February 2003.

The subject trial was held in May 2005 and, as such, the conditions as they existed at that time are no longer subject to evaluation. While I am reluctant to penalize either party for the failure of the court to inspect the premises, I concur with the majority that a greater abatement is warranted by virtue of the plain fact that it is documented that an infestation of roaches has existed in the subject apartment from March 21, 2002 through May 14, 2005.
Decision Date: December 27, 2006