The issues presented by this case are whether a bedbug infestation in leased residential premises can be the basis of a breach of the implied warranty of habitability and, if it is, whether a tenant is entitled to an abatement of rent paid by a government agency.

By notice of petition and verified petition, dated and sworn to on September 8, 2011, the Landlord initiated this summary proceeding to recover possession of real property. The petition alleges that, on or about August 15, 2000, and pursuant to a written agreement, the Landlord leased 14B Hamilton Avenue, Ossining, New York (the "Leasehold") to the Tenant for a monthly rent of $1,778.00. The Tenant's lease obligation to pay rent always has been subsided by the Village of Ossining Housing Choice Voucher Program, commonly known as the Section 8 Program.

The Section 8 Program was part of the Housing and Community Development Act of 1974. (42 USC §§ 1404-1440). Congress intended the Program to provide decent, affordable housing to low-income families. Section 8 provides landlords with rental subsidies for each qualified tenant who occupies an approved housing unit. Units must meet minimal habitability standards and have rent limitations. Families are accepted for the Program on the basis of their income: only a family whose annual income does not exceed 80% of the median income for the area in which the family lives is eligible. As rent, a Section 8 tenant must pay either 30% of the family's [*2]monthly adjusted income or 10% of the family's gross monthly income, whichever of the two amounts is greater. (42 USC § 1437a[a][1]). A U.S. Department of Housing and Urban Development approved Housing Agency, such as Ossining's Housing Choice Voucher Program, pays the balance of the rent. That way, the family is not forced to choose between food, shelter, and clothing when allocating its limited resources. (Williams v. New York City Housing Auth., 1994 WL 323634, *2 [SD NY 1994]; Greenwich Gardens Associates v. Pitt, 126 Misc 2d 947 [Nassau Dist Ct 1984]).

The petition further alleged that Respondent, still in possession of the Leasehold, did not pay her share of the monthly rent ($249) for May, June, August, and September 2011, totaling arrears of $996.

As relief, the petition seeks a judgment for possession of the Leasehold, a warrant to remove the Tenant therefrom, and a money judgment for rent arrears, with costs, disbursements, and attorneys' fees.

At the initial hearing on the petition, the Tenant appeared pro se and verbally alleged, in substance, that she is entitled to an abatement of her rent for the period of time that she resided in the Leasehold when it was infected by bedbugs. The Court understood that affirmative defense to allege that the bedbug infestation was a breach by the Landlord of the statutory implied warranty of habitability.

In every written or oral lease or rental agreement for residential premises, a landlord or lessor shall be deemed to covenant and warrant that the leased or rented premises, and all common areas, are fit for human habitation, are fit 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. (Real Property Law § 235-b). In Park West Management Corp. v. Mitchell, 47 NY2d 316 (1979), the Court of Appeals explains, explicitly and by inference, the warranty of habitability: (1) the landlord is responsible for maintaining the leased premises in decent condition even if the problems are not caused by its negligence; (2) the tenant's obligation to pay the agreed rent is conditioned upon the landlord's keeping the premises habitable; (3) the tenant does not have to move out in order to claim that the warranty has been breached; (4) the standard for determining whether the leases premises are habitable is the expectations of a reasonable person; (5) that damages are not susceptible to precise determination does not insulate the landlord from liability; and (6) expert testimony is not required.

Also at the initial hearing, counsel for the Landlord moved to amend the petition to reduce the demand for rent arrears from $996 to $496 in order to give the Tenant credit for having recently paid $500 as rent.^[FN1] The Tenant did not dispute that she has failed to pay the Landlord $496 as rent. Instead, the Tenant argued that the rent arrears should be eliminated or reduced significantly by an abatement of her rent obligation during the bedbug infestation. [*3]

Because the Tenant's defense to the petition raised genuine issues of material fact, the Court ordered that there be a bench trial, which took place on September 21, 2011. At the trial, John W. Frustace, Jr. testified for the corporate Landlord as its president. Donna Alexander again appeared pro se and testified on her own behalf as the Tenant.

Findings of Fact and Conclusions of Law

As an important preliminary matter, the Landlord proved by a preponderance of the evidence all the required factual elements of the amended petition in order to obtain the relief sought. In particular, the Tenant acknowledged having received personally the Landlord's five-day notice terminating her tenancy (PX-3 in evidence), which is dated and which was served on September 2, 2011. In fact, the Tenant testified that she paid $500 to the Landlord as rent the day after she received the five-day notice.

In defense, the Tenant testified and argued, in substance, that she is entitled to an abatement of her rent because the Landlord had breached the implied covenant of habitability in her lease due to the bedbug condition of the Leasehold. The Tenant testified in graphic detail concerning how that condition made her home a wretched place to live for her family and her. The Landlord offered no testimony or evidence disputing the existence and extent of the bedbug infestation. In fact, Ossining's Section 8 Program corroborated the Tenant's testimony concerning the bedbug infestation. On July 22, 2010, a Section 8 Program inspection reported that the Leasehold was not in compliance with federal housing quality standards, in part, because of bedbugs. (RX-1 in evidence).

A bedbug infestation can be a breach of the implied warranty of habitability. (Valoma v. G-Way Management, LLC, 29 Misc 3d 1222(A), 2010 NY Slip Op 51943(U) [Civ Ct. Kings Co. 2010] ["Recent cases have held that bedbug infestation can constitute a breach of the implied warranty of habitability."]; Assoc. v. CW, 24 Misc 3d 1225(A), 2009 NY Slip Op 51617(U) [Civ Ct, New York County 2009] ["Court have consistently found a breach of the warranty of habitability and awarded an abatement where an apartment is infested with bedbugs."]; Jefferson House Assocs, LLC v. Boyle, 6 Misc 3d 1029(A), 2005 NY Slip Op 50225(U) [Just Ct, Town of Ossining 2005]). Here, the Court finds that the Tenant has proven by a preponderance of the evidence that the bedbug infestation of the Leasehold was such a breach.

During the trial, the Tenant presented no testimonial or documentary evidence as to when the bedbug infestation began. In the absence of such evidence, the Court is compelled to find that the bedbug infestation began on or about July 22, 2010, the date that the Section 8 Program inspected the Leasehold and discovered the infestation. (RX-1 in evidence.) Thereafter, the parties agree that the Landlord's efforts to exterminate the bedbugs began on or about August 20, 2010. (RX-3 and RX-4 in evidence.) The parties disagree, however, as to when the extermination was completed: the Landlord testified that it was completed within a week; the Tenant testified that it took at least two months to complete.

By crediting the Tenant's testimony that the bedbug extermination took at least two month to complete or October 20, 2010, that means that the duration of infestation was 81 days. According to the Tenant, she seeks an abatement of all or some percentage of her share of the rent paid to the Landlord for that 81-day period and to have that abated amount applied as a credit against the rent arrears of $496.

In determining the amount of the abatement, the court may consider the severity of the adverse conditions of premises, the period of time during which those conditions existed, and their [*4]impact on the tenant's living habits as well as the effectiveness of the landlord's attempt to remedy them. (Concord Village Management v. Rubin, 101 Misc 2d 625 [Suffolk Dist Ct 1979]).

Starting from the premise that damages for breach of the implied warranty of habitability are not susceptible to precise determination, the Court finds reasonable the ruling of former Town Justice Edwin S. Shapiro in Jefferson House Assocs, LLC v. Boyle, a case also involving a bedbug infestation, that a rent abatement as high as 50% can be warranted.

Here, based on the credible evidence received at the trial, the Court concludes that the Tenant is entitled to a rent abatement of 50% of her share of the rent she actually paid during the 81-day period from July 22, 2010 to October 20, 2010. Because the parties agree that, from August 2010 to April 2011, the Westchester County Department of Social Services, on the Tenant's behalf, paid her share of the rent ($249 per month), with the Tenant paying no rent during that time period, the Tenant's rent abatement is limited to 50% of the rent she actually paid for the 9-day period from July 22, 2010 to July 31, 2010 or $37.35.

Accordingly, it is the decision of the court that the Landlord is entitled to a judgment for possession of the Leasehold based on non-payment of rent, a warrant to remove the Tenant therefrom, and a money judgment for $458.65 for rent arrears, with costs and disbursements pursuant to the Justice Court Act.

Submit proposed judgment, warrant, and bill of costs.

Entered, this 28th day of September 2011 in the Town of Ossining.

_________________________

John W. Fried, Justice