BACKGROUNDThis summary nonpayment proceeding was commenced LGS REALTY PARTNERS LLC, and AHA REALTY PARTNERS LLC (Petitioners) and seeks to recover possession of 736 Riverside Drive a/k/a 630 West 151st Street, Apt 6B/6C, New York, New York, 10031 (Subject Premises), based on the allegations that WILLIAM KYLE, III (Kyle), KATHERINE [*2]GILBERT (Gilbert) and MARY NIKITIN aka Mary Kyle (MK) (Collectively "Respondents") the original rent stabilized tenants of record, have failed to pay rent due for the Subject Premises.

PROCEDURAL HISTORY

Petitioner issued a three day demand dated November 16, 2009, seeking $35,892.64 in arrears for a period covering April 2008 through November 2009, at a monthly rent of $1702.38 for April through July 2008 and $1800.27 for August 2008 through November 2009. The petition is dated December 3, 2009, and the proceeding was originally returnable December 22, 2009.

On the initial court date, William Kyle (Kyle) appeared and moved for a continuance to obtain counsel. The proceeding was adjourned to January 7, 2010.

On January 7, 2010, Respondents filed an answer asserting a general denial and a defense and counterclaim for breach of warranty of habitability. Respondents' motion for a continuance was marked withdrawn as moot, and the proceeding was adjourned to January 22, 2010. Also pending on January 7, 2010, was Respondents' motion by their prior attorney Robin H. Kyle, to preclude Petitioner from entering certain evidence at trial.

On January 22, 2010, the parties entered into a stipulation marking the proceeding off calendar, pending an appeal on a previous related proceeding between the parties under Index Number 77281/2006. The stipulation provided for Respondents to pay $5000 by February 12, 2010, and 40% of ongoing rent for February 2010 forward. The stipulation was silent as to the pending motion, but both the proceeding and motion were marked off calendar.

On March 4, 2010, Petitioners moved to restore the proceeding to the calendar and for related relief, based on Respondents' failure to make the payments agreed upon pursuant to the January 22, 2010 Stipulation. The motion was adjourned to March 16, 2010, when it was withdrawn pursuant to a stipulation, wherein the payment due was acknowledged.

On March 14, 2011, Petitioner moved for an order restoring the proceeding to the calendar, consolidating the proceeding with the prior nonpayment proceeding and for related relief. The motion was granted by the court (Schneider, J) to the extent of restoring the proceeding to the calendar on March 14, 2011, for all purposes including the selection of atrial date. The request for consolidation was denied, and the proceeding was restored for May 25, 2011 at 9:30 am. The trial date was adjourned over a number of dates. On June 16, 2011, the court adjourned the trial date to August 11, 2011 and marked the proceeding final.

On August 11, 2011 the proceeding was transferred to Part X for assignment to a trial judge. The transfer order noted that a motion in limine remained to be determined by the trial judge.

On September 22, 2011, Respondents moved in the resolution part for an order dismissing the second and third affirmative defenses asserted in Petitioner's reply to counterclaim. The motion was denied on that date as untimely. On the same date, Respondent's motion originally returnable January 7, 2010 (Seq 2) was denied by the court and a new trial was scheduled for October 20, 2011. The proceeding remained in Part E. Notwithstanding the previous final markings, the parties continued to enter into stipulations adjourning the trial date through April 9, 2012, when the proceeding was marked off calendar by the court (Saunders, J).

On August 21, 2012, Petitioner moved to restore the proceeding to the calendar for settlement or trial. The moving papers asserted that on April 9, 2012, Respondents had failed to [*3]appear and Petitioner had understood a default had been entered against Respondents, but later learned that in fact the proceeding had been marked off calendar by the court. Respondents failed to appear, and the motion was granted by the court (Saunders, J) to the extent of restoring the matter to the calendar for trial on September 20, 2012.

On September 20, 2012, Respondents again failed to appear and the court (Saunders, J) issued a decision granting Petitioners a default judgment in the amount of $7,340.00 for the period covering February 2012 through September 2012. The warrant of eviction issued on December 11, 2012.

On January 28, 2013, Respondents obtained new counsel who moved for an order staying enforcement of the judgment and vacating the warrant of eviction and for related relief. On March 4, 2013, the motion was granted by the court (Saxe, J) pursuant to an order which directed Respondent to deposit the judgment amount of $7340.00 in court by March 15, 2013, and provided that, upon such deposit, the judgment and warrant would be vacated and the matter would proceed to trial on April 15, 2013.

On April 15, 2013, Respondent moved for partial summary judgment and for an order compelling the court to determine the prior motion for in limine relief. The file jacket indicates that said motion was denied on November 18, 2013. On November 12, 2013 the court (Kaplan, J) signed a transfer order providing that upon determination of said motion, the parties were to pick a trial date in Part S.

On February 24, 2014, the proceeding was assigned to Judge Kraus for trial. The trial commenced on said date, in Room 820, and continued on February 25, 26, 27 and concluded on February 28, 2014. The proceeding was adjourned to April 22, 2014, for the submission of post trial memoranda and transcripts. On April 22, 2014, post trial memoranda and transcripts were submitted, and the court reserved decision.

2006 NONPAYMENT PROCEEDINGThere was a prior related nonpayment proceeding between the parties under Index Number 77281/2006, wherein Petitioner was awarded a judgement of $ 22,843.19 for all rent due through March 2008 (Ex H) per decision and order issued April 23, 2008. Respondents appealed said decision, and the Appellate Term issued a decision on August 30, 2010 ( Ex A-28 and reported at 29 Misc 3d 44) finding that the amount of the abatement due Respondents, should be increased, because the trial court should not have reduced the am,ount of the abatement, based on the fact that MK had been living rent free in apartment 4E in the Subject Building since 2005. The Appellate Term also held that Respondents were not the prevailing party in the litigation and not entitled to attorneys' fees. Pursuant to said Appellate Term order, the amount of the judgment due was reduced by the trial court pursuant to a decision and order issued November 22, 2010 finding the total arrears due through March 2008 to be $10,883.89 (Ex F).

The decisions from the 2006 proceeding provide some pertinent background information about the long term and endless litigation that has plagued this landlord tenant relationship.

Gilbert and Kyle have occupied the Subject Premises since approximately 1995. MK occupied the Subject Premises through 2005. Pursuant to an agreement reached in a 1999 nonpayment proceeding (Index No. 86707/99), all rent due through July 1999 was waived, and a new vacancy lease was to be signed for the Subject Premises at $1450 per month (Ex A-25) [*4]commencing August 1, 1999. Pursuant to said stipulation, Respondents agreed to be responsible for the renovations to the Subject Premises, and the installation of a new bathroom in the Subject Premises.

Specifically the stipulation provided that the landlord would remove the vinyl floor tiles in the living room, bathroom and hallway, run an electrical line from the 6C Kitchen to the panel in 6B, sheetrock the walls and ceiling in the bathroom, after removing the bathtub and bathroom fixtures, and inspect and repair the kitchen wiring in the 6B kitchen as necessary. The tenant agreed to complete the apartment renovations and bathroom installation, and to do the work on the lintels above the opening between former 6b and 6C. It was also agreed that the newly combined units would incorporate a portion of the hallway that was previously a common area of the building.

In February 2000 there was a fire in the building that affected the Subject Premises. Pursuant to an out of court agreement between the parties, the landlord again waived all rent due through December 31, 2000 (Ex 6), and Respondents agreed to pay to complete the renovations, correct any violations and make all repairs in the Subject Premises.

In 2004, there was another nonpayment proceeding, where the court invalidated the out of court agreement in part and awarded Respondents a judgment after making a finding of overcharge and rent abatements. Respondents again paid no rent from the entry of the judgment in the 2004 proceeding through the date of the court's decision in 2008.

TRIAL

Petitioner established its prima facie case at trial. Petitioner is a co-owner as tenant in common of the subject building, pursuant to a deed dated October 9, 2007 (Ex 1). The building has a proper multiple dwelling registration (Ex 2). Kyle and Gilbert are the rent stabilized tenants of record of the Subject Premises pursuant to the most recent renewal, dated April 22, 2013, renewing the lease for a period running from August 2013 through July 31, 2015. MK was sued herein, but the evidence at trial establishes that she vacated in 2005 and did not execute the last lease renewal between the parties. Petitioner has given Respondent MK possession of Apartment 4E, a two bedroom apartment in the same building, in which she has lived since 2005, and at least through 2008, for which she paid nothing.

Petitioner established that the legal registered rent as of June 2013 was $1979.85 per month (Ex 3) and the rent of $2059.04 per month from August 1, 2013 forward is provided for in the renewal lease and otherwise uncontested by Respondents. Through February 2014 the unpaid arrears for the Subject Premises total $92,622.08 (Ex 4 and transcript from 2/24/14 pg 30 Lines 14-16). The court finds that Petitioner's rent ledger shows proper credits were given to Respondents for the prior abatements and Respondents offered no proof of any payment not credited by Petitioner. Petitioner's application to amend the petition to date was granted at trial.

Petitioner's first witness Maurice MacKenzie (MacKenzie) credibly testified about lack of access by Respondents, and about the custom work done to Respondents' specifications which also prolonged the renovations to the Subject Premises. For example, a double sink was installed in the kitchen. A bathroom was relocated to another area in the Subject Premises , and delays were had in waiting for specific materials that Respondents insisted be used, to be provided by Respondents. MacKenzie credibly testified that a new kitchen was installed for Respondents including new cabinets. MacKenzie also testified that there was a period of nearly two years [*5]where Kyle's father was ill and Kyle spent the majority of his time traveling to Michigan, allowing for very little access to continue the renovations. Kyle's testimony confirmed this when on cross-examination he testified that he didn't pursue a 2009 HP Proceeding, because he needed to be in Michigan (2/25/14 transcript p. 216). Kyle also insisted on specifying to Petitioner which workers he would and would not permit to work in the Subject Premises.

The first witness to testify for Respondents was Kyle. The court did not find Kyle to be a credible witness at all, and therefore the court does not give great weight to Kyle's testimony. The court finds that Kyle did not cooperate with Petitioner's attempts to make repairs, and that Kyle often interfered and prevented or prolonged the work to be done. The court further finds that much of what Kyle described were not rent impairing conditions, but were actually custom renovations being performed by Petitioner to Kyle's specifications and to combine the two units, or to complete and repair demolition work done by Kyle himself in the Subject Premises.

For example, Petitioner installed a new bathroom to Respondent's specs, when Petitioner attempted to comply with the law by making the bathroom handicap accessible, Respondents thwarted this attempt and delayed the work (se eg Ex A-27). Respondents' dilatory tactics grew so severe that Petitioner had to resort to service of a Notice to Cure to attempt to stop the delays (Ex A-26). Kyle insisted in directing Petitioner's workers on what to do and how to do it (see eg Ex A-7).

Kyle also insisted on using particular materials which he was to supply to Petitioner for the work, but then Respondent delayed in providing the materials to Petitioner. For example, MacKenzie credibly testified that when Petitioner was custom building a new bathroom for Respondents in the Subject Premises, Kyle insisted on using a particular type of tiles, and asked Petitioner to hold off until Kyle provided the tiles, which Kyle did. Part of this ongoing battle almost seems to be a matter of gamesmanship for Kyle.

Kyle's testimony was false on such basic issues as who lived in the Subject Premises and what his relationship to those individuals was. For example, Kyle first alleged that MK and thier two children lived in the Subject Premises, and that Gilbert was merely a "co-tenant and a signatory to the lease (transcript from February 26, 2014, p. 59 -60 where Kyle insists that Gilbert is a "roommate" pursuant to the roommate law)." In fact the credible evidence at trial shows that MK and their two children live in apartment 4E in the building and have for nearly a decade, and Gilbert described herself as family unit with Kyle, considering his children to be her own and sharing a bedroom from the inception of the tenancy.

Kyle acknowledged that Carlos Rosa (Carlos), the current super, has been diligently pursuing the renovations in the Subject Premises since 2010. Kyle testified that since Carlos took over in 2010 the renovation work has been "fantastic." Kyle acknowledged doing the renovations in one of the bedrooms himself, and then requiring Carlos to do custom molding which Kyle described as "brilliant work" and "flawless" ((Transcript from 2/25/14, p.79). In another example where Petitioner had installed a custom closet for Respondents in their master bedroom, Kyle described the custom renovation done by Carlos by testifying the "Carlos, as usual, does a genius job here... (Transcript 2/25/14, p. 107)." Carlos is also custom renovating the kitchen in apartment 6B to be used as a bathroom by Respondents, at their request. Kyle's testimony acknowledged that Carlos spent much of 2013 on this work (Transcript form 2/25/14 [*6]p. 132). Kyle also acknowledged that since 2009 Petitioner has earnestly been working on the renovations to the Subject Premises (transcript 2/25/14 p. 144).

Additionally, Kyle originally went in and did his own demolition work and construction including taking down walls, portions of ceilings, erecting other walls, and then over the course of the prior litigation between the parties, Kyle stopped leaving that unfinished work in place for Petitioner to take up and fix (See eg Gilbert's testimony that Kyle took down walls as early as 2002 and reinstalled the walls himself transcript from February 26, 2014, p.109). Kyle acknowledged he ripped out the floor in the kitchen and that he employed "mostly convicted drug dealers and crack heads" to do the demolition work. Kyle removed the walls and the ceiling in the dining room in or about 2001. Kyle did his own "lead abatement" in all three bedrooms, all the hallways and the living room and dining room stripping these rooms down to the bare wood (2/26/16 transcript, p. 8-11). Kyle also did his own electrical work (2/26/14 transcript p. 16). Basically Kyle acknowledged demolishing most of the Subject Premises including walls, ceilings and floors in preparation for the renovations.

In addition to the fact that most of the testimony did not describe rent impairing renovations, there is little evidence of HPD violations issued for the Subject Premises during the relevant period. Respondents only filed one complaint with HPD in the year prior to the trial and this was for lack of heat in January of 2014. HPD website indicates that an occupant of the Subject Premises confirmed that the condition had been promptly corrected. The only other outstanding violations are from 2010, and could not be certified as corrected because Respondents refused access to the HPD inspector for said purpose (Ex aa, p. 15). This is consistent with the claims of Petitioners' witnesses regarding lack of access.

Kyle did commence an HP Proceeding in January 2010, under Index Number 6016. Kyle's pleading complained of seven conditions for which the HPD Inspector reported no violation. The conditions which were found unsubstantiated by the inspector included the kitchen floor, defective windows, lack of heat, and that the roof needed repair. As a result of the inspection, only three class B violations were placed. Kyle failed to appear on the initial court date of February 4, 2010, and the proceeding was dismissed based on his failure to appear. Kyle never sought to restore the proceeding. The inspection report belies Respondents' complaints about failure to provide adequate heat. The inspection took place on January 20, 2010, on that date the temperature ran from a low of 31 degrees to a high 41 degrees ^[FN1] and the inspector found that there was adequate heat in the Subject Premises. Additionally, there was no specific or detailed evidence presented by Respondents as to temperatures in or outside of the Subject Premises at any particular date, just general conclusory testimony that parts of the Subject Premises felt cold or drafty.

Carlos testified and the court find Carlos to be a very credible witness. Carlos testified that each individual repair/renovbation was delayed because of specific requests the Respondents had which Petitioner, although no legal obligation to do so, accommodated in every instance. For example, Kyle wanted particular moldings installed in the bathroom, the framing done in a particulars manner, and particular materials used for the work. When it came time to paint the [*7]hallways, Respondents insisted on a particular type of paint being used, again, Petitioner, though accommodated these requests, which also involved the application of additional coats of paint. When Respondents weren't satisfied with work already done to the floors, Petitioner redid the work so the floors were esthetically pleasing, although there was no violation requiring additional work. This was done throughout the Subject Premises and Petitioner ordered special materials to renovate the floors to Respondents' specs.

Additionally, Carlos credibly testified that Respondents refused to prepare the Subject Premises for repairs by clearing out the rooms, although Respondents had been asked to do so by Petitioner. After Respondents' refusal to remove their own belongings so the work could proceed, Petitioner moved all of the belongings for Respondents, so Petitioner could proceed with the work. Petitioner at no cost to Respondents stored Respondents belongings in another area of the building so the work could be done.

Additionally, Carlos credibly testified that Respondents were often unable to provide access. Respondents were not home to provide access and tried to insist that Petitioner and its agents enter when Respondents were not home but minor children were home, which was against Petitioner's policies. This severely limited access in 2010-2013. Other times, Respondents just denied access because of their schedules. For example, between November 2013 and January 2014, Respondents denied access to Carlos on twenty-seven specific occasions. Kyle acknowledged in his testimony receiving multiple written requests from Petitioner in their attempts to gain access (2/25/14 Transcript p. 137).

The court finds that Respondents did present credible evidence leaks warranting a rent abatement. The court finds that there was a leak in the half bathroom and the master bedroom in the Subject Premises. At the time of the HP proceeding in January 2010 there was no evidence of either leak found by the HPD inspector. However, by the summer of 2010 there is evidence that these leaks existed. As of the date of date of the trial, the leak in the half bath and bedroom had not been fully resolved. Petitioner did work on the interior and exterior to address the leaks, but those repairs did not completely abate the leaks which were continued as of the date of the trial. This condition is in no way related to the renovations of the Subject Premises, and any delays in providing access can not be considered a substantial mitigating factor against the abatement claim, as the repairs required to stop the leak emanating from the exterior of the building, are required to the roof and exterior of the building. Respondents did not provide much evidence of the extent to which the leak in the bedroom interfered with their use of the apartment, but did establish their use of the powder room was impacted anytime it rained.

DISCUSSION

RPL §235(b) provides for a warranty of habitability. It provides that "(i)n every written or oral lease or rental agreement for residential premises the landlord or lessor shall be deemed to covenant and warrant that the premises so leased or rented .... are fit for human habitation and 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."

However, that same section also provides that "(w)hen any such condition has been caused by the misconduct of the tenant ... it shall not constitute a breach of such covenants and warranties." While Respondents' actions in taking down the walls, ceilings kitchens etc of the [*8]Subject Premises can not be considered "misconduct," Respondents' actions caused the Subject Premises to be in substantial disrepair by commencing renovations and then halting them as the endless litigation between the parties went forward.

To determine what abatement is appropriate the court 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 (Park West Management Corp. v Mitchell 47 NY2d 316, at 329)."

In this case, Respondents testified that they rented the first apartment in poor condition. This was reflected in the price and the landlord had agreed to renovate with their input. They rented the second apartment and agreed to undertake the renovations to combine the apartments upon themselves, while any waiver of the warranty of habitability is unenforceable, the warranty does include an examination of the parties' intentions. Additionally, the warranty of habitability is not intended to cover conditions created when improvements or renovations are being done at the request of the tenant and to the custom specifications of the tenant.

Finally, a failure by the tenant to provide access may limit the amount of any abatement awarded by the court, or eliminate the right to an abatement completely [Ele v Ayanru NYLJ Mar 20, 2002, p.22, col. 4 (App Term, 1st Dept)(tenant denied abatement based on complaints of lack of heat where tenant failed to provide landlord's agents with access to the premises); 56 McDougal St Co v Miller, NYLJ, April 22, 1990, p.22, col.3 (App Term, 1st Dept); Sickle management v Roque, NYLJ Sept. 16, 1994, p. 25, col. 1 (App Term, 1st Dept)].

The court finds that Respondents are entitled to a 10% abatement for the leaks from July 2010 through February 2014. The total rent due under the lease from July 2010 through February 2014 is $85,770.71. The total abatement due to Respondents is $8,577.07. The court does not find that Respondents established the right to an abatement for any other condition.

Based on the foregoing, a final judgment of money and possession is entered against Respondents Kyle and Gilbert in the amount of $84,045.01. Issuance of the warrant is stayed five days for payment. The court does not find that Petitioner established an agreement to pay rent by MK. MK did not testify at trial, and was not present for all but one afternoon of the proceedings. No lease was offered into evidence which names MK as a tenant or was executed by MK. Moreover, the evidence at trial showed that MK has lived with her children in Apartment 4E in the Subject Building since at least 2005. As such a final judgment of possession only is entered as against MK, with a warrant of eviction stayed five days for payment.

Finally, Petitioner is directed to abate the source of the leaks within thirty days. Respondents are directed to provide access on reasonable notice.

This constitutes the decision and order of this court.^[FN2]

Dated: May 5, 2014

New York, NY

____________________

Hon. Sabrina B. Kraus,J.H.C.