Via non-payment petition dated December 4, 2006, Charles Regensburg, seeks a money judgment and warrant of eviction dispossessing the respondent, John Rzonca, from the premises located at 105 E. 3rd St., Rm. No.1, Huntington Station, NY 11746. The respondent has interposed a verified answer (dated December 4, 2006), which asserts breach of the warranty of habitability and containing counterclaims seeking a sum in excess of $500,000. The Court previously reviewed the respondent's counterclaims and has severed them, as the parties lease agreement contains an exculpatory clause prohibiting the respondent from asserting counterclaims in this summary proceeding.

Undisputed Facts

At the trial of this matter, conducted on December 14, 2006, the Court found the following facts to be either acknowledged or uncontroverted.

1. The petitioner (hereafter "the landlord") is the owner of the residential real property premises located at 105 E. 3rd St., Huntington Station, New York.

Page 2

Index No. HULT 539-06

2. The landlord owns nineteen separate residential rental houses and now operates twelve rental units as boarding houses for United States Veterans. In these houses each tenant leases a single bedroom and shares common areas of the house with numerous other veteran/tenants.

3. The parties to this action executed a one year written lease dated October 12, 2004 (Exhibit #3) wherein Mr. Rzonca was granted occupancy of a bedroom located at 105 E. 3rd. St. Rm. #1, Huntington Station, New York. The cost to the tenant was $500 per month. The lease contains a rider which refers to "house rules"which govern tenants behavior and which prohibits their alcohol and non-prescription drug use.

4. The subject premises was occupied by at least five veterans in June of 2006. Though only two such veterans testified in the context of this trial, the Court is cognizant of three other veterans who were recently dispossessed from the subject premises following their entry into stipulations filed with this Court, in other eviction proceedings instituted by petitioner.

5. Contrary to paragraph #'s 6 and 53 of the lease, the petitioner did not pay the water bill at the premises which resulted in an interruption of service. The veteran tenants of the facility thereafter had to place the water utility in their name and pay the charges for same.

6. The electric utilities were in the landlord's name when the respondent took occupancy. The initial practice between the parties was for each tenant to pay his proportionate electric bill share to the landlord in cash, who would then pay the bill to the electric authority. In February 2006, the landlord refused to pay the electric bill and said utility was turned off. Several days thereafter, the electricity was restored after a local charity paid the bill for the veterans. It is a disputed fact as to whether the respondent/veterans paid the $800 electric bill in cash to the landlord.

7. A large menacing man nicknamed "Columbia" moved into an accessory structure on the lease premises in May 2006. Columbia engaged in open crack cocaine use and in harassing and menacing behavior towards the veterans which resulted in the police being called on at least four occasions by the respondent and other veterans. It is disputed as to whether Columbia had the permission of the landlord to reside on the premises. The landlord averred at trial that Columbia was a trespasser.

8. The respondent complained to the landlord about Columbia's activities including his proclivity to shower naked using the hose in the garden and his disposal of fecal waste in the garbage pails stored near the tenants ' window. The respondent was advised by the landlord that he would not be returning from the Hamptons for the summer and that the veterans should address the situation themselves by contacting the police.

Page 3

Index No. HULT 539-06

9. The police refused to remove Columbia as a trespasser as he told them he had the owner's brother permission to stay, and possibly also because he served as a neighborhood informant for gang related activity.

10. After the initial dispute between the respondent and Columbia, the outside door to the house was removed by an unknown person and the respondent's room was burglarized in August 2006 . After this time the respondent resorted to carrying a firearm and needed an upward adjustment in his anxiety medicine. The respondent suffers from post traumatic stress disorder.

11. The landlord demolished the shed and Columbia vacated the premises on October 2, 2006.

12. The respondent has not formally paid rent for the months May through December 2006. It is a disputed fact as to whether the respondent paid June's rent to the landlord with $500 of casino gambling chips in Atlantic City and June's rent via an agreement for the landlord to apply his security deposit.

Issues Presented

A. Does a landlord who operates a for-profit boarding house for displaced veterans have an implied obligation under Sec. 235(b) to actively manage the facility/residence so as to promote the quiet enjoyment of the residents?

B. Do the facts described infra constitute a violation of the warranty of habitability detailed in New York Real Property Law Sec. 235(b)?

Discussion

Three Criteria/Warranty of Habitability

The Court of Appeals comprehensively reviewed the scope of New York Real Property Law Sec. 235(b)^[FN1]and opined that it effectively changed the pre 1975 Common Law standard, [*2]which held that a lease was only a conveyance of possession of real property to the concept that it is now "a sale of shelter and services." See Park West Management Corp.v. Mitchell, 47 NY2d, 316, 325 (NY 1979). Emphasis added. In this decision, the high Court determined that this statutorily created implied warranty was comprised of three independent criteria.

Page 4

Index No. HULT 539-06

By entering into any lease for residential premises, the landlord is deemed to have covenanted and warranted the following three things: First, "that the premises are fit for human habitation; second; that the condition of the premises is in accord with the use reasonably intended by the parties; and third, that the tenants are not subject to any conditions endangering or detrimental to their life, health and safety." Park West Management Corp. v. Mitchell, supra, at p. 325. Emphasis added; See also McKinney's Consolidated Laws New York, RPAPL Section 235(b) and commentaries thereto. Violation of any one of the criteria constitutes a breach of the warranty of habitability.

The statutory warranty has been extensively construed as it relates to the (first criteria) "fit for human habitation" and (third criteria) "no conditions dangerous to life, health and safety."

There exists no definitive list of conditions which violate the warranty of habitability. Conditions which various Courts have found violative of the warranty of habitability are: noxious fumes, excessive odors, light or noise, second hand smoke, excessive dirt and debris in common areas, taking inadequate action to remedy situation of menacing co-tenants, failure to adequately protect their safety, water leaks and the failure to provide adequate security to the tenant. Utilizing Sec. 235 (b)'s first and third component case law and applying it to the facts at hand, it is clear that though the tenant would be entitled to a percentage abatement for the conditions he suffered, he would be evicted in this action as the "fit for habitation" and "dangerous to life" conditions were effectively cured after Columbia left on October 2, 2006 and no subsequent rent was paid.

Intention of the Parties

Reasonableness of Expectation

However, the crux of this case involves the less frequently implicated second criteria which calls for an examination of whether "the condition of the premises is in accord with the use reasonably intended by the parties." The warranty of habitability is a broadly interpreted statute which requires the Court to consider the "bargain struck by the landlord/tenant" when evaluating a second prong breach of the warranty. See Mantica R. Corp. v. Malone , 106 Misc 2d 953 (NY Civ. Ct. 1981). The Court is granted wide latitude in examining the totality of the facts [*3]which constitute such a violation. Park West Mgt. Corp. v. Mitchell , supra. In construing the "intention of the parties" the Court must weigh the significance of the bargained for service which was not provided.

The Court is comfortable that the record presented supports the finding that the use intended by the parties was that of a group boarding home and that this use was a significant term of their lease bargain.^[FN2] (See Exhibit #1 lease with "house rules"). It is undisputed that the landlord had an informal arrangement with the local Veterans Administration Hospital that it refer displaced veterans to the landlord for residential placement. It is reasonable for the Court to infer that a landlord who operates 12 such facilities would be on notice that many of his

Page 5

Index NO. HULT 539-06

displaced veteran tenants suffer with serious problems and disabilities, and that an affirmative level of interaction and or supervision would be necessary to maintain an acceptable level of practical co-existence amongst unrelated individuals on the property. Unlike a single family resident who may wish to only interact with the landlord on rent collection day, it is reasonable to assume all the parties to this lease would anticipate that the proprietor of a displaced veteran's boarding house would have a significant daily presence on the premises and would be available to enforce communal living rules and resolve related disputes. Clearly, the landlord's admitted removal of himself to the Hamptons for the summer, his failure to have any personal mental health training or to install alternative management arrangements is not in congruence with the "group home" condition which was intended by the parties. In this instance, a reasonable tenant in the respondent's position would expect that the landlord would maintain

an on site presence to regulate the conduct occurring in the common area of the boarding house and to enforce the "house rules" stated in the lease.

An on site presence would also have allowed the landlord to meet his lease obligation of providing water/sewage service at the landlord's expense. A management presence would also have prevented the termination of electrical service. The landlord's assertion that the tenant was responsible for electrical payment is not justifiable in this instance inasmuch as under the lease each boarding room tenant is responsible to the landlord for his proportionate share of the bill only, not the entirety of the house bill. It is the landlord who bears the administrative burden of paying the bill to the utility up front and insuring uninterrupted provision of essential services. The tenant's responsibility is to pay his proportionate share only, as part of his financial obligation to the landlord.

Though not expressly stated in the lease, landlords have been found to have implicitly assumed a duty to provide security by doing something so simple as installing a common lock [*4]system in a multiple dwelling unit. See Brownstein v. Edison, 103 Misc 2d 316 (Sup. Ct., 1980). Landlords with notice of crime related security breaches in a multi unit building assume an affirmative duty to provide security services. See 610 W. 142nd Street Owners Corp. v. Braxton, 137 Misc 2d 567 (NY Civ. Ct. 1987) citing to Highview Assoc.'s v. Kofeal, 124 Misc 2d 797 (Dist. Ct. Suffolk Co. 1984) and asserting the proposition that a landlord who is on notice of crime related security breaches has an obligation under Sec. 235(b) to protect his tenants with a secure door. In a defacto multiple dwelling, an assumed duty extends to common areas and ancillary structures, Forest Hills Co. v. Schimmel, 110 Misc 2d 429 (NY Civ. Ct. 1981).

The notion of leaving emotionally vulnerable tenants to their own resort, instructing them to (call the police) after being informed of Columbia's harassing behavior, is inconsistent with a boarding house environment. Even without a bargained for duty, case law requires a landlord to protect tenants from being bullied and harassed by other drug dealing tenants. See Auburn Leasing Co. v. Burges, 160 Misc 2d 374 (Civ. Ct. Queens Co. 1994). Boiled down to its most basic denominator, the landlord's voluntary and virtually complete absence, his failure to

Page 6

Index NO. HULT 539-06

correct the lack of security arising from the missing front door, his failure to have the police or otherwise remove "Columbia" [a known drug using trespasser according to the landlord], the landlord's pattern of withholding promised essential services (electricity, water) were all inconsistent with any reasonable expectation arising out of the parties' boarding house lease agreement, and represent a violation of the second prong of the warranty of habitability.

Damages

"The duty of the tenant to pay rent is coextensive with the landlord's duty to maintain the premises in habitable condition and the proper measure of damages for breach of the warranty

is the difference between the fair market value of the premises if they had been as warranted...and the value of the premises during the period of the breach. Amerifirst Mortgage Corp. v. Green, 7 Misc 3d 1028(A) (Dist. Ct. Nassau Co. 2005) citing to Park West Management Corp. v. Mitchel, supra. The damage award may take the form of a percentage reduction of the contracted-for rent as a set off in a summary nonpayment proceeding. In ascertaining damages, the finder of fact must weigh the severity of the violation and duration of the conditions giving rise to the breach, as well as the effectiveness of steps taken by the landlord to abate those conditions. The Court is permitted to give an abatement of rent for the months before the tenants began withholding rent. N. Town Roosevelt Assoc. v. Mullen, NYLJ, Oct. 27, 1980. P.6, col. 45.

The landlord's orally amended petition seeks the recovery of May-December 2006 rent, equaling $4,000. From this sum the tenant is entitled to a breach of warranty abatement and his [*5]payment credits. In the instant case the tenant is entitled to a 10% abatement ($50 per month) for the landlords failure to pay the water utility. The Court would award the tenant a credit for water charges he paid which were the landlord's obligation, but the record does not detail them. The record does support a finding that this $50 per month credit runs back to at least February 2006, totaling $550 if computed through December 2006.^[FN3]

The Court adopts as fact, the tenants sworn assertion that he paid $500 of rent via the tender of casino gambling chips; and $500 via an agreed surrender of his security deposit. Also credited to tenant is the $800 of converted cash payments made to the landlord for the electric bill payment. It is the Court's further determination that the value of the "boarding house management services" contemplated by the lease is 50% of the monthly rent of $500 or $250 per month. As a result of the landlord's total dereliction of his duty to provide boarding house services, the tenant is entitled to a $250 per month credit from May - December ($250 x 8 ) equaling $2,000.

Page 7

Index No. HULT 539-06

Crediting the tenant with $1,800 of actual payments, together with $2,000 and $550 of abatements, the tenant's offset is $4,050 toward the $4,000 rent due. In the absence of an outstanding rent obligation, a non payment eviction proceeding may not be maintained..

Accordingly, the petition is dismissed.

_______________________________

J.D.C.

[*6]