[*1]
Landlord v Tenant
2011 NY Slip Op 52490(U) [34 Misc 3d 1222(A)]
Decided on June 13, 2011
Just Ct Of Vil. Of Scarsdale, Westchester County
Katz, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on June 13, 2011
Just Ct of Vil. of Scarsdale, Westchester County


Landlord, Petitioner,

against

Tenant, Respondent.




20CIV 05SP



Tenant, Pro Se, Kenneth Saltzman, Esq., Goodman & Saltzman, Esqs.

Arlene E. Katz, J.


Petitioner-Landlord, commenced this action by Notice of Petition and Petition dated March 21, 2011 to Recover Possession of Real Property due to Non-Payment of Rent. The Petition alleges inter alia Respondent-Tenant, owes rent as follows: November 2010 - $3850.00, December 2010 - $3850, January 2011 - $3850, February 2011 - $3850, March 2011 - $3850.00, plus $375.00 in late fees totaling $19,625.00.

Tenant in her Answer to Petition, Application & Counterclaims sworn to April 13, 2011 denies owing rent and interposed inter alia Affirmative Defenses as follows: Breach of Quiet Enjoyment, Breach of Warranty of Habitability, Constructive Eviction, Overpayment, Misrepresentation and Performance and Clean Hands. Tenant counterclaims for diminished value of rental premises, unjust enrichment and emotional distress.

A hearing was held on May 23, 2011 at which time the Tenant waived traverse and submitted to the jurisdiction of the Court.

Testimony and Findings of Fact

Landlord and Tenant entered into a Lease dated July 20, 2009 for a term of one year beginning August 1, 2009 ending July 31, 2010 for premises in Scarsdale, New York. Tenant exercised her option to renew for an additional year pursuant to letter dated April 17, 2010. Landlord's first witness was its majority shareholder, "Mr. A" who testified the tenant did not pay rent for August 2010, December 2010 and February 2011 through May 2011. Tenant told him she could not pay due to health and financial difficulties and to apply her security towards the rent. During the course of the tenancy there were some issues regarding the refrigerator, boiler and dryer which he repaired and of downed trees, which he disposed of. He paid for all needed and known repairs becoming aware of other complaints only after reading responses to the current litigation.

"Mr. A" described a conversation he had with the Tenant about a week after she moved into the property. He stated he knocked on her door to welcome her and in the course of casual conversation explained that her lot and the adjacent lot would be developed at some future time.

The adjacent lot in August 2010 was undeveloped and remained so until March 2011 because of the cold weather. In November 2010 there was soil testing which required a backhoe [*2]on the adjacent lot for a day or two. Once construction commenced in March 2011 his contractor built a silt fence and placed bales of hay further in from his tenant's property line than required by Village Code.

Landlord's second witness was "Mr. U" the General Contractor. In pertinent part, his testimony is consistent with that of "Mr. A" In addition, "Mr. U" testified the construction began either the last week of February or first week of March 2011. The adjacent lot had a porta potty in view of and several feet from the premises, jack hammering in early March and heavy equipment consistent with construction of a single family home.

Tenant's first witness was "Mr. P", the father of Tenant's two children. He went inside Tenant's home once for the first time at 8:30 a.m. the morning of this trial at which time Tenant "pointed out" areas either in need of repair or effected by the construction. He "saw evidence of water marks on the ceiling but no water. The ceiling was cracked, appeared to be peeling, paint and plaster (sic)." The room was 10 by 11 feet with a rug/carpeting, bed, bureau and books. He did not mention a bucket or musty smell.

Tenant also pointed out the kitchen lights didn't work. He saw water running along a hose in front of the premises. A curtain in the den blocked 80% of the window view of the construction site.

He has been picking up his children at the premises more than once a week for a considerable amount of time and the construction began in either February or March 2011.

Tenant testified for most of the tenancy she believed the adjacent lot was part of her leasehold and strongly denied any conversation with "Mr. A" advising her of development.

Tree branches and a huge Spruce fell on her driveway and power lines in February 2011. The Landlord told her to call Con Edison and Cable and deduct repairs from her rent. She testified she had the tree removed but did not supply bills or documentation to support this.

In support of her claim that construction began in October or November 2010 Tenant testified that in October or November 2010 her son told her there was a "'piece of equipment there is somebody rolling across our lawn. What's going on? (sic)' And the contractor testified they were doing soil testing at that point." She testified the construction began in October or November 2010 because "there were goings and comings on the property" and there was heavy equipment on the adjacent lot beginning October or November 2010. No other evidence was submitted to support this assertion.

Tenant described "water that drips in (her younger son's bedroom) during rainstorms." causing her to move the bed and put a bucket to protect her antique desk and carpet. In support she submitted Respondent's Exhibit "T" a Xeroxed paper of an unclear photo with lines running through it. She later testified her " son's bedroom is unusable at times " (emphasis added.)

Six kitchen lights broke and the dishes rattled when the jack hammering began in March 2011. She put lamps in the kitchen to supplement the lighting. "That's where we do most of the work. Even though there is a desk in my children's room, they do homework in the kitchen and can't really sit there." She later states she uses the kitchen at different times for certain meals. The refrigerator is broken so she uses a garage refrigerator implicitly to bring food into the kitchen.

A large den window faces the cranes and backhoes. " it's unnerving to use that room given the windows .I have it covered now with curtains ." She later states she doesn't use the den, portions of the living room and or dining room for "fear of injury" because of the window which overlooks the construction. Several times Tenant stated the construction makes her very [*3]nervous.

Tenant testified she couldn't sit on the front porch where they have "seating and plants" because of the Porta Potty odor and construction. It must be noted that Respondent's Exhibit L-1 is a photograph of the premises taken February 2, 2011 showing much snow and a small porch. The platform and steps are slightly wider than the door and would not reasonably be expected to be used other than for entrance/egress purposes.

Similarly, Tenant testified the construction prevents her from using patio furniture and the outdoor areas. There was no testimony detailing in what manner her use of the outdoor portion of the premises was curtailed during the colder months Tenant has put at issue. Tenant submitted photographs of the adjacent lot detailing the large vehicles, excavation, and construction. (Respondent's Exhibits J, K-1, K-2, K-3, M-1, M-2, N-1, N-2, N-3, N-4, P-1, P-2, O-1, O-2, O-3, O-4, O-5)

Nonpayment Petition


The Nonpayment Petition is granted subject to the following findings of fact and conclusions of law.

Breach of Covenant of Quiet

Enjoyment and Constructive Eviction

A covenant for quiet enjoyment by a lessor is implicit in a lease. Edgerton v. Page 20 NY 281 (1859). To establish a case of breach of the covenant of quiet enjoyment a tenant must show the landlord's conduct substantially and materially deprived the tenant of the beneficial use and enjoyment of the premises for the purposes for which they were leased. Barash v. Pennsylvania Term Real Estate Corp, 26 NY2d 77(19 ); Davies, Turner & Company v. Harry Schatzen 124 Misc. 170 (NY Sup Ct 1924). A tenant may assert as a defense to nonpayment the doctrine of partial constructive eviction from a portion of the premises; the portion must be unusable by the tenant even if there is no actual abandonment. Minjak v. Randolph, 140 AD2d 245 (AD First Dept. 1988). In general, a tenant may not claim constructive eviction if a landlord builds on an adjoining lot absent lease provisions to the contrary. A landlord has a right to build on and utilize his/her property in the same manner as an uninvolved third party. See Generally, 52A CJS Landlord & Tenant Section 969 Deprivation of easements or appurtenances; Sulken v. Love, 135 Misc. 637 (Mun. Ct. 1930); Kingsway Realty and Mortgage Corp v. Kingsway Repair Corp, 223 AD 281 (Second Dept 1928).

Tenant herein has failed to establish her burden of proof of breach of quiet enjoyment or partial constructive eviction. Tenant raises many issues regarding the premises. However, based on her presentation, manner and order of her testimony, significant portions of Tenant's testimony are not credible. The defects she does prove are not sufficiently substantial to deprive her of the intended use and enjoyment of the leased premises and are not tantamount to a constructive eviction under the law.

The Court rejects Tenant's claims of partial constructive eviction from the kitchen, bedroom, den, living room and dining room. The Court finds her family ate meals in the kitchen and used the kitchen for homework. The use of a garage refrigerator and her placement of lighting to supplement broken ceiling lights belie her assertion that the kitchen was not utilized.

Both Respondent's witnesses described a bedroom with a made bed, carpet/rug, antique desk and books. There was no mention of a musty smell. Nor did "Mr. P" describe [*4]dripping water, water damage to furniture or rug/carpet, a bucket or furniture out of place. Tenant failed to meet her burden she was constructively ousted from this room. The Court similarly finds the Respondent put up a curtain in the den to allow her to more comfortably use the den, living and dining rooms because she did not like to view the construction site.

Tenant failed to establish the construction rose to the level of breach of covenant of quiet enjoyment and partial constructive eviction of the outside portion of the premises. If nothing else, her testimony lacked specificity. Merely stating she could not use the patio due to mud and the view next door especially when months of November through March are at issue by Tenant raises much doubt regarding Tenant's affirmative defenses.

The Court credits both the landlord's witnesses and Tenant's own witness "Mr. P" who testified that construction began the last week in February 2011, not October or November 2010 as claimed by Tenant. The Court finds Tenant failed to pay August 2010, December 2010, January 2011 and February 2011 rent, long before construction began. This causes the Court to pause and casts doubt upon the Tenant's claimed motivation for withholding rent. Accordingly, the affirmative defenses for breach of quiet enjoyment and constructive eviction are dismissed.

Warranty of Habitability

The warranty of habitability requires the landlord of a residential property to repair and keep the property fit for human habitation and free from hazardous conditions. Park West Management Corp. v. Mitchell 47 NY2d 316 (1979). If a tenant proves the warranty has been breached the measure of damages is the difference between the fair market value of the premises if there had been no breach and the value of the premises during the breach. Itskov v. Rosenblum, 7 Misc 3d(A)(NY Sup App Term 2005); Forest Hills v. Schimmel 110 Misc 2d (Queens Ct Civ Ct 1981). Expert testimony is usually required to establish the difference in value. 487 Elmwood Inc. v. Hassett,107 AD2d 285 (Forth Dept 1985).

The Court finds Landlord breached the warranty of habitability for the construction period commencing the last week in February 2011. In 487 Elmwood v. Hassett, supra, the Court granted a rent abatement based on the noise, vibrations and dust caused by jack hammering and other construction. Forest Hill v. Schimmel, supra, holds in relevant part that where there are conditions which frustrate the reasonably intended use of a Garden Apartment's outdoor common area the tenant is entitled to a rent abatement.

For purposes of warranty of habitability the Court finds Tenant met her burden. The Court credits her testimony, which includes vibrations during jack hammering, mud, uncontroverted testimony regarding porta potty odor, and unpleasantries. Landlord claims Tenant renewed her lease subject to the construction because of his early conversation with Tenant. However any conversation regarding "future" construction with Tenant was vague, not at all intended to inform her of legal consequences and not sufficient notice under the law. In addition Tenant's photographs speak for themselves regarding diminution of value. Accordingly the Court finds the Tenant is entitled to a 20% rent abatement from the last week in February 2011.

Tenant's claims for other rent abatements are dismissed. In order to hold a landlord responsible for repairs pursuant to the warranty of habitability a tenant must give notice to the landlord Jangla Realty Co v. Gravagna, 112 Misc 2d 642 (1981). "Mr. A" credibly testified that he repaired the property when needed as evidenced by repair bills. He credibly testified he was unaware of any other needed repairs until the current litigation commenced. Tenant who submitted letters, texts, an email, numerous photos and other exhibits failed to submit letters to the landlord regarding a broken refrigerator and lights or cracked/leaking ceiling. "Mr. A" credibly testified he [*5]timely removed debris from fallen trees. The Court finds no further rent abatement is merited.

Affirmative Defenses and Counterclaims


The tenant's remaining Affirmative Defenses and Counterclaims are dismissed.

The above constitutes the Decision and Order of this Court.

The Court requests Petitioner's attorney submit a proposed judgment and warrant in accordance with this Decision and Order.

Dated: June 13, 2011
So Ordered:

Scarsdale, New York

_____________________________

Arlene E. Katz
Acting Village Justice