Matilda Kiss
AND MIKLOS KISS, Petitioners-Landlords
against
Francesca Castellanos ,
Respondent-Tenant
|
L & T 88929/2013
MATILDA & MIKLOS KISS
Petitioners Pro Se
195-34 Keno Avenue
Holliswood, New York 11423
COLLINS DOBKIN & MILLER, LLP
Attorneys for Respondent
By: W. Miller Hall, Esq.
277 Broadway, 14th Floor
New York, New York 10007
212.587.2400
Sabrina B. Kraus, J.
This summary nonpayment proceeding was commenced MATILDA KISS AND
MIKLOS KISS(Petitioners) and seeks to recover possession of 503 West 169th
Street, Apt 51, New York, New York, 10032 (Subject Premises), based on the
allegations that FRANCESCA CASTELLANOS(Respondent) the tenant of
record has failed to pay rent due for the Subject Premises.
PROCEDURAL HISTORY
Petitioners issued a three day demand dated November 2, 2013, seeking
arrears for a period covering January 2011 through November 2013, at a monthly rent of
$381.59. The petition is dated November 25, 2013, and the proceeding was originally
returnable December 17, 2013. Respondent appeared by counsel and filed an answer and
counterclaims. Respondent sought a rent abatement for breach of warranty of habitability
and an order to correct.
On the initial court date, Petitioners, who appeared pro se, moved to
strike Respondent's counterclaim. The motion was denied per written order and an
inspection was ordered by the court. The inspection was ordered for December 24, 2013,
however due to the actions of the tenant the inspection did not take place. In lieu of an
inspection report, the inspector submitted the following report :
Abusive and uncooperative tenant. Tenant stated all HPD inspectors work
for Landlord and used very inappropriate language. Suspended inspection to the [*2]apartment, provided inspector badge No. and name to the
tenant. Exit from the building. Notified Supervisor D. Browne.
On January 17, 2014, the court ordered a new inspection and set a trial date for
February 14, 2014. An inspection took place on January 25, 2014. The inspection
resulted in two Class "A" violations, eight class "B" violations and one class "C"
violation. The violations were for conditions including fixing the toilet, repairing the
floors, painting and plastering, leaking faucets in the bathtub, a defective entrance door,
defective sink in the bathroom, repair needed to window balances, repair of cabinet
under the sink, and a defective radiator valve.
On March 14, 2014, the proceeding was assigned to Part L for trial. The trial
commenced on said date, and continued and concluded on May 20, 2014. After trial the
court reserved decision.
PRIOR PROCEEDINGSThere were six prior holdover proceedings
instituted by Petitioner against Victoriano Castellenos from June 2011 through
September 2012. The first proceeding was under Index Number 70601/2011 and was
licensee proceeding asserting that Victoriano Castellenos was the rent control tenant of
record and had vacated and that the persons remaining had no legal right to possession.
On September 26, 2011, the proceeding was dismissed pursuant to an order granting
Respondent's motion based on procedural defects with the papers. The second
proceeding under Index Number 91963/2011 was originally returnable in December
2011, and was discontinued without prejudice on January 18, 2012.
A third proceeding under Index Number 57494/2012 was originally
returnable March 19, 2012. Respondent appeared by counsel and asserted she was the
daughter of Victoriano Castellenos, the last rent control tenant of record. Respondent
asserted she had resided in the Subject Premises since 1970 and that Victoriano
Castellenos has permanently vacated the Subject Premises in 1980. This proceeding was
discontinued without prejudice on April 23, 2012. A fourth proceeding under Index
Number 67445/2012 was dismissed by the court on the initial return date June 22, 2013.
The dismissal was without prejudice. A fifth proceeding was instituted under Index
Number 79006/2012 and was dismissed by the court on the initial return date of
September 21, 2012 for procedural defects. A sixth holdover proceeding was
commenced under Index Number 91715/2012 and was originally returnable December
27, 2012. The proceeding was discontinued without prejudice by Petitioner on February
1, 2013.
A nonpayment proceeding was instituted by Petitioner against Victoriano
Castellenos under Index Number 91710/2012. In that proceeding, Petitioner issued a rent
demand dated December 2, 2012 seeking arrears from March 2011 through December
2012 at a monthly rate of $381.57. The petition is dated December 2012. No one ever
appeared or answered and on January 7, 2013, Petitioner applied for a default judgment
against Victoriano Castellenos. The application for a default was denied by the court
based on improper service.
At the request of Respondent the court takes judicial notice of these files and
their contents.
TRIAL[*3]At trial
Petitioners put only one document in evidence which was a lease agreement for the
Subject Premises with Victoriano Castellenos. The petition asserts that Respondent is the
rent control tenant of record and that Victoriano Castellenos was the prior rent control
tenant of record and "probably died in jail." Respondent stipulated to Petitioner's
prima facie case except for the amount due. Respondent also stipulated that
$381.59 is the legal rent. Petitioners alleged that Respondent had paid no rent since
January 2011.
Respondent testified that she lives in the Subject Premises with her
grandmother who is 93 years old and her adult son. Respondent testified that she has
lived in the Subject Premises for over 45 years and that she has known Petitioners
personally since 1988. Respondent established that rent was paid and accepted by
Petitioners for January through March 2011 (exs 3(a- d) and 11). In April 2011,
Respondent sent Petitioners a written request for repairs (EX 1). Respondent notified
Petitioners of repairs necessary in the kitchen, bathroom and bedrooms of the Subject
Premises. Respondent advised that she would be able to provide access for the repairs
from April 25, 2011 through May 7, 2011.
Petitioners responded in writing asserting that because Respondent was a
rent control tenant and not a rent stabilized tenant, Petitioners had no obligation to do the
repairs citing language from the January 1969 lease agreement with Victorianos
Castellanos (Ex 2).
Respondent offered evidence of violations issued for the Subject Premises.
The violations establish both the conditions of the Subject Premises and that Petitioner
was on notice of said conditions. On July 21, 2011, there were reported violations at the
Subject Premises for the toilet that was not securely fastened, a defective intercom, for
defective windows, defective wood floors, failure of the toilet to flush properly, painting
and plastering, and a defective sink in the bathroom. Petitioner falsely certified four of
these violations as corrected pursuant to sworn statements filed by Matilda Kiss (Ex 4).
That these certifications alleging that "Mike general contractor" had corrected the
violations are false was undisputed at trial, where Petitioners testified that prior to March
2014 they had not been in the Subject Premises for repairs for over five years and that
Respondent had never provided them access. The remaining violations Petitioner
submitted a written statement that since the Subject Premises was governed by rent
control, Petitioners were not obligated to make the repairs and that the violations were
falsely reported.
On September 12, 2011 violations were again issued for the sink in the
bathroom, the windows, painting and plastering, and missing CO2 detector and smoke
detector. Once again Matilda Kiss falsely certified the violations had been corrected by
Mike on October 4 and 6, 2011. In July 2013 a violation was issued for the loose toilet
bowl. That violation was falsley certified as corrected by Matilda Kiss who asserted
Mike had done the repair on October 24, 2013. Other violations issued on the same date
for the same conditions previously noted, and additionally for defective ceramic tiles in
the bathroom, and missing wall cabinets in the kitchen were again responded to by
Petitioners who stated because the Subject Premises was subject to rent control she was
not obligated to correct the conditions.
Additionally, Respondent offered evidence that a 15 square foot portion of
her ceiling collapsed and was repaired by HPD as an emergency condition in late
fall/early winter of 2011 (Ex 7). Finally a new violation for 36 square feet of mold was
issued for the bathroom wall of the Subject Premises on April 28, 2014 (Ex 12).
The Subject Premises is a three bedroom apartment with a kitchen, bathroom
and living room. Respondent testified at trial that she seeks a rent abatement from May
2011 forward. Respondent also seeks an order to correct.
Mr. Kiss testified at trial and asserted that Petitioners had repeatedly
attempted to gain access , on thirteen occasions, but access was denied. Mr. Kiss also
testified that HPD Inspectors had repeatedly demanded bribes from him and that his
refusal to pay the bribes resulted in the inspectors falsely placing violations on the
Subject Premises.The court did not find Mr. Kiss to be a credible or reliable witness. The
super also testified that he had been in the Subject Premises in March 2014 to repair the
windows and that he saw no mold in the bathroom, but he also acknowledged he did not
know what mold looked like.
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." The warranty of
habitability is not subject to waiver.
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)."
The court finds that with the exception of the window, repaired in march
2014, all of the conditions for which violations were issued from 2011 through the date
of trial remain uncorrected and substantially impaired Respondent's ability to use the
Subject Premises. Moroever, Petitioners intentionally and repeatedly attempted to escape
their obligations to perform the repairs for years, including by the submission of false
certifications to HPD and the commencement of a litany of frivolous holdover
proceedings. For most of this period, Petitioners refused to even acknowledge that
Respondent was the tenant of record of the Subject Premises, yet now they sue for rent
from January 2011 forward.
The petition was amended at trial to include all rent due through May 2014
on consent.
Based on the foregoing, the court finds that Respondent is entitled to a 80%
rent abatement for the period of May 2011 through May 2014. The court finds that no
rent was paid from April 2011 through May 2014 . Thirty-eight months at a rate of
$381.39 per month totals $14,492.82. An 80% abatement for May 2011 through May
2014 totals $10,989.80. Therefore, Petitioners are entitled to a final judgment against
Respondent in the amount of $3503.02 for all rent due through May 2014. Issuance of
the warrant is stayed five days for payment.
Additionally, the court deems all violations issued from 2011 through 2014
for the Subject Premises as uncorrected, with the exception of the one window that has
been repaired. Petitioner is directed to correct all said violations within 30 days of service
of this order with notice of entry. Access shall be provided by Respondent on June 2
through June 6 from 9 am to 5 pm with workers to arrive by 11:00 am.
This constitutes the decision and order of this court.
Dated: May 20, 2014
New York, NY____________________
Hon. Sabrina B. Kraus, J.H.C.
TO: