[*1]
3660 Oxford Ave. Assoc., LLC v Ambrosini
2014 NY Slip Op 50938(U) [43 Misc 3d 1236(A)]
Decided on June 17, 2014
Civil Court Of The City Of New York, Bronx County
Vargas, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 17, 2014
Civil Court of the City of New York, Bronx County


3660 Oxford Avenue Associates, LLC, Petitioner-Landlord,

against

Leonora Ambrosini, Respondent-Tenant.




L & T 011635/2013



Emanuelli & Pilloti



1188 Grand Concourse



Bronx, New York 10456



Joon H. Park, Esq.



5914 Spencer Avenue



Bronx, New York 10471


Javier E. Vargas, J.

After the lengthy hearing before the undersigned on the instant nonpayment of rent proceeding and a careful review of the Memorandum of Law and Exhibits admitted into evidence, this Court makes the following findings of fact and reaches the following conclusions of law.

I.



For over 40 years, the nonagenarian Respondent Leonora Ambrosini ("Tenant") has been the rent-stabilized tenant-of-record of the subject Premises located at 3660 Oxford Avenue, Apt. 3F, in the Bronx, New York, which are owned by Petitioner 3660 Oxford Avenue Associates, LLC ("Landlord"), and managed by Weinreb Management of Manhattan. Tenant, who presented herself as a frail, but relatively healthy senior citizen, has lived by herself in the Premises for most of these decades. It is undisputed that the one-bedroom Premises, which are subject to the Emergency Tenant Protection Act of 1974 and the Rent Stabilization Laws of 1969, have a monthly rental of $1,146.42,[FN1] according to Landlord's Rent Ledger admitted into evidence. Landlord's agent and long-time manager of the subject property at all relevant times was Mr. Al Rosenshine, who is Weinreb's Director of Operations. Both the Tenant and Mr. Rosenshine were the primary witnesses at the ensuing hearing.



Prior to December 2011, Tenant had reportedly experienced several habitability problems and issues with her apartment, prompting her to complain to Landlord's resident Superintendent, one Mr. Hugo Calvi. Although there was testimony that Mr. Calvi went to Tenant's premises to address several of her complaints, on December 12, 2011, Tenant corresponded to the Landlord notifying it and detailing all the repairs needed to be made to her apartment at that point in time, including: a malfunctioning and misaligned front entrance door; obsolete "fifty year-old" air conditioning units; an inoperative smoke and fire alarm; stuck window sashes throughout the apartment; and several issues in the kitchen, such as a worn-out kitchen floor, a wall damaged by an old water leak and resulting "mold" on the wall and countertop. Describing these circumstances as "continu[ing] long enough" and "disgraceful," Tenant concluded her letter demanding that she "expect this situation concerning repairs to Apartment 3F to be corrected within a reasonable period."



In response to Tenant's letter, on January 19, 2012, Landlord's agent Weinreb Management responded, in what appeared to be a form letter, that the Superintendent had been directed "...to enter the apartment to repair any items that require repair. [But that, u]nfortunately, we do not replace old but working items." This letter was signed by Mr. Rosenshine, who testified at trial that, upon the receipt of any repair complaints, this was the usual procedure followed by Landlord. During the hearing, Tenant repeatedly and angrily testified that Landlord failed to make any repairs. She testified as to her inability to open the windows, her [*2]embarrassment over the "disgraceful" kitchen floor and misaligned front door, and the "disgusting" look of the "mold bouquet" condition in the bathroom and kitchen. Even though claiming that Tenant failed to provide them unimpeded access to make the repairs, Mr. Rosenshine acknowledged that he made no follow up efforts in response to Tenant's correspondence and that, again, that was his usual procedure. No written record of repairs or any other records, except for the Rent Ledger, were apparently kept, or submitted into evidence, by Landlord or Mr. Rosenshine.



Frustrated with the lack of repairs, in August 2012, Tenant reported the numerous defects in her apartment to the Department of Housing Preservation and Development of the City of New York ("HPD"). On August 6, 2012, an HPD Agent, Mr. Phillip Samuels, testified that he visited and inspected the apartment finding numerous violations and conditions in need of repair. Specifically, his HPD Violation Notice noted that: the bathroom's "plumbing basin sink porcelain is chipping or metal eroding," had a "spider crack" and that there was a "water leak from the ceiling" causing the walls to be "damp and wet;" that the "windows are stuck" and have "loose, broken frames in the entire apartment;" that the kitchen had mold on the walls and countertop from a "leak from the wall" and that its "floor covering [was] broken or defective;" and that the front door was "broken, defective missing entrance." These HPD Violation Notices issued for the subject Premises were admitted into evidence, and establish both the existing conditions and that Landlord was on notice of said conditions.



Ten days after the inspection, on August 19, 2012, HPD returned to the Premises to ascertain compliance with the Violation Notice which was mailed to Landlord, only to find that no repairs had been made. Indeed, an additional violation was found in the apartment, the most serious Class C violation found in the Premises, to wit: that the "electric/gas range pilot light [was] inoperative." On August 29, 2012, HPD came back to the apartment and noted that still no repairs were made. On September 5, 2012, another HPD inspection revealed the same continuous violations, including that the "electrical gas-range pilot light inoperative" and all "window sashes [are] stuck and inoperative" throughout the apartment. Shockingly, similar violations continued during inspections on September 20, 2012, September 27, 2012, October 5, 2012, October 11, 2012, October 23, 2012, October 31, 2012, and November 19, 2012. Not only were the stuck windows, the mold in the kitchen and bathroom walls as well as the "sagging and sloping" kitchen floor continued unabated, but HPD stated that the "electric gas range shut off valve [was] leaking [and the] pilot does not light when turned on. Gas leak when turned on;" Tenant confirmed that the 50 year-old stove was "obsolete" and "out-of-date." In sum, a total of 12 inspections by HPD and subsequent Violation Notices were allegedly entirely ignored by Landlord. According to one of the HPD Violation Reports in October 2012, HPD found that Landlord's "management refuse[d] to comply with HDP regulations" and make the required repairs to Tenant's apartment with respect to the existence of mold in the kitchen and bathroom.



Faced with Landlord's alleged failure to completely comply with the HPD violation notices, Tenant began to withhold her monthly rent payments commencing in December 2012. Even with this rent retention, no repairs were conducted. Instead, Landlord orally demanded Tenant to pay all the arrears owed by then, but Tenant refused to do so without the completion of the pending repairs.



As a result, by Notice of Petition and Petition filed February 20, 2013, Landlord [*3]commenced the instant nonpayment proceeding against Tenant to recover four months of rent arrears totaling $4,745.68, possession of the apartment and reasonable costs and legal fees. By Answer dated March 8, 2013, Tenant represented by counsel answered raising as Affirmative Defenses that her Premises were in need of repairs and were uninhabitable in violation of the Warranty of Habitability embodied in Real Property Law § 235-b, and that Landlord commenced this proceeding in retaliation for her good faith complaints to HPD and other governmental agencies about the conditions existing in her apartment. Tenant also interposed a Counterclaim against Landlord to recover the money she expended in correcting the conditions and repairing her apartment, in the form of a credit or set-off from her monthly rent.



In defense of its case, Landlord's Mr. Rosenshine testified that he and Mr. Calvi went to Tenant's apartment on several occasions to inspect and commence the work needed for the repairs, but that Tenant was hostile, "hard to deal with" and sometimes failed to provide access for them to complete the repairs. In fact, Landlord submitted in evidence an October 10, 2012 letter to Tenant, which asks her to contact Mr. Rosenshine due to her failure to allow access to repair several HPD violations "with regard to plastering and painting in your apartment." No reply was received by Landlord. According to Mr. Rosenshine, several of the violations were repaired in December 2012 and January 2013, including the replacement of the bathroom sink, the repair and painting of the kitchen and bathroom walls, and the installation of a new smoke/carbon monoxide alarm. With respect to the kitchen floor, he testified that it was in working order and only needed some replacement linoleum tiles. Tenant's own contractor verified that Tenants just wanted to replace the entire kitchen floor, even though only some tiles needed repair. Indeed, Mr. Rosenshine testified, as corroborated by Tenant, that they offered her the installation of linoleum floors to replace the whole kitchen floor, but that she refused to approve floor samples to be used for the job as looking "awful" and cheap.



Likewise, in December 2012, Landlord offered Tenant a new stove and even a certificate of $400-$500 to buy one, as acknowledged by Tenant and her own contractor, but she refused the same, wanting to refurbish or purchase the same kind of "antique model" stove. Tenant testified that she spoke to a neighbor, one Mr. Lee, who allegedly offered to substitute his old working stove in exchange for the new stove Landlord offered Tenant. She alternatively testified that she wanted to buy her own "antique model" stove. Dissatisfied with Landlord's repairs, in March 2013, Tenant hired her own contractor, Jampol, Inc., to make repairs to the kitchen the way she wanted by installing new hardwood flooring, replacing the countertops and removing the "mold" in the kitchen area for a total of $1,804.85, of which $955.90 was for the installation of the floors. Tenant candidly testified that the contractor disconnected the stove during the floor installation and that, at her request, it had not been reconnected or turned on since then. Sometime in that Spring, Landlord finally certified that it repaired the bathroom sink and wall, albeit again not to Tenant's satisfaction since the wash basin was purportedly smaller than the previous one.



After several conferences trying to settle the case, this Court ordered an HPD inspection for June 20, 2013, which revealed some of the same violations still extant: (1) "electric/gas range pilot light inoperative" in the kitchen; (2) "windows loose/broken frame or entire apartment;" and (3) "door broken, defective, missing entrance." These remaining repairs were certified as completed by Landlord in August 2013, and Landlord again offered a stove to Tenant during the [*4]pendency of the trial. No settlement agreement was reached despite several conferences.



A hearing was conducted with the undersigned presiding for several intermittent days, on December 4, 2013, December 11, 2013, December 18, 2013, February 27, 2014, March 12, 2014, and April 3, 2014. In support of Tenant's case, she testified during the hearing as well as her kitchen contractor, Mr. Guy J. Bartolotta; her neighbor, Ms. Dawn Pérez, who took pictures of some of the conditions; and Mr. Samuels, the HPD agent/inspector. In the interim, in March 2014, Tenant's continued dissatisfaction with Landlord's stove replacement offers prompted her to independently hire a private stove repair company to repair the gas stove and bought the new stove she wanted, which was shipped from an out-of-state Sears Store. At the conclusion of the hearing, this Court afforded counsel the opportunity to obtain the hearing transcript, submit post-hearing memoranda and reserved decision on April 3, 2014. Only Tenant's counsel submitted an undated Post-Trial Memorandum of Law.

II.



Real Property Law § 235-b(1), entitled Warranty of Habitability, provides in pertinent part:

In 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 and all areas used in connection therewith in common with other tenants or residents 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.



Under this Habitability Warranty, the "landlord is not required to ensure that the premises are in perfect or even aesthetically pleasing condition; he[/she] does warrant, however, that there are no conditions that materially affect the health and safety of tenants" (Park W. Mgt. Corp. v Mitchell, 47 NY2d 316, 328 [1979]). In ascertaining damages for a violation of the warranty, "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" (id. at 329; Elkman v Southgate Owners Corp., 233 AD2d 104, 105 [1996]). "Inasmuch as the duty of the tenant to pay rent is coextensive with the landlord's duty to maintain the premises in habitable condition, 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, as measured by the rent reserved under the lease, and the value of the premises during the period of the breach," which calculation may take the form of a rent abatement or "percentage reduction of the contracted-for rent as a setoff in summary nonpayment proceeding in which the tenant counterclaims or pleads as a defense breach by the landlord of his duty to maintain the premises in habitable condition" (Park W. Mgt. Corp. v Mitchell, 47 NY2d at 329; see Kiss v Castellanos, 43 Misc 3d 1227[A], 2014 WL 2198634 [NYC Civ Ct 2014]). A tenant may also make needed repairs and then deduct their reasonable cost from the monthly rent, if after notice to the landlord, it "willfully refused" to complete the repairs (Jangla Realty Co. v Gravagna, 112 Misc 2d 642, 645 [NYC Civ Ct 1981]; see Scherer, Residential Landlord-Tenant Law in New York, § 12:118, at 862 [2013-12014]).



Applying these legal principles to the matter at bar, this Court holds that Tenant has [*5]sufficiently established an entitlement to an aggregate rent abatement for certain, but not all, of the conditions which existed in her apartment for over one year. Preliminarily, it should be noted that the parties do not dispute that Tenant owes over one year of rent at $1,146.42 per month amounting to approximately $16,049.88 up to March 2014,[FN2] and Tenant has placed that sum in escrow with her attorney pending the outcome of this proceeding. She also properly raised the habitability defense as a Counterclaim in her Answer. Addressing that counterclaim for an abatement, Tenant credibly testified as to multiple ongoing conditions in her apartment, and her oral and written notifications of these conditions to the Landlord, which are the prerequisites for a rent abatement (see 1097 Holdings, LLC v Ballesteros, 17 Misc 3d 1111[A], 2007 NY Slip Op 51925[U] [NYC Civ Ct 2007]). Tenant specifically testified and provided HPD Violation Reports of the misaligned front door, broken windows throughout the apartment, bathroom mold and cracked sink, as well as the kitchen mold, defective floor and stove problems. Additionally, Tenant's witnesses, Messrs. Samuels, Bartolotta and Ms. Perez, corroborated the extent and nature of those conditions.



Although Tenant did not mince words in her testimony complaining about the "disgraceful" condition of the Premises and expressing her disdain for Landlord and its agents, the photos in of the kitchen wall, countertop and floor submitted into evidence do not demonstrate an uninhabitable condition. It is clear that the walls, floor and countertop look old, dingy and show some mildew around the corner of the kitchen sink, but they also appear to be fully functional and perhaps in need of cleaning. There was no testimony as to Tenant's housecleaning habits, general cleanliness, or how often she used the kitchen stove to cook her meals or otherwise, given her advanced age. Indeed, there was evidence that Tenant ordered the stove permanently disconnected after the kitchen floor installation in 2013. Nor was there proof that the conditions included actual mold. As such, these violations may not be of such a magnitude, individually or collectively, as to constitute a danger to the life, health, or safety of Tenant (see DeKoven v 780 W. End Realty Co., 48 Misc 2d 951, 956 [NYC Civ Ct 1965]), albeit a failure to provide a working stove constitutes a breach of the habitability warranty (see Rosewohl Enters., LLC v Schiffer, 12 Misc 3d 141[A], 2006 NY Slip Op 51373[U] [AT 2006]).



However, the testimony about the windows and the photo of the bathroom window do show inoperable and newspaper-covered windows, and the photos of the bathroom ceiling show a patch area of water damage and resultant mildew and what appears to be mold. It is clear that Landlord's Superintendent and agent took their time in attempting to repair some of these conditions and successfully repaired some, while others were left unaddressed for over one year, whether due to Tenant's lack of access or their own neglect. It is also clear that Landlord's failure to repair was not completely its fault. In fact, HPD had to conduct negotiating sessions between the parties at the Premises to get Tenant to provide unimpeded access. Nevertheless, there were Violation Notices issued for all those conditions by the experts at HPD and this Court, therefore, relies on their expertise and finds that Tenant has sufficiently shown an entitlement to a rent abatement of 20% of the monthly rent for the abovementioned conditions of the front door, [*6]bathroom, kitchen and windows, from August 2012 until August 2013, when the repairs were certified as completed by Landlord to HPD. She should also be reimbursed for her expenditures in repairing the kitchen wall and countertop amounting to $848.98 (see Jangla Realty Co. v Gravagna, 112 Misc 2d at 645-646).



A different result will follow with respect to the conditions with the stove and the kitchen floor. Despite her frail appearance and advanced age, Tenant provided strong testimony, and openly displayed her anger and frustration about Landlord's neglect in repairing her apartment. This Court understands her deeply rooted frustration and does not condone Landlord's inaction with respect to certain of the repairs. However, this Court carefully observed Tenant's combative demeanor and conduct throughout the proceedings, court appearances and during the hearing. She was loud, disrespectful and borderline abusive towards her counsel, her home-care aide who diligently attended to her needs and even to court personnel! She belittled and openly argued with her very competent counsel, who in response always behaved professionally towards her. With those displays of obstreperousness before a court of law, this Court can only imagine her behavior at the Premises towards Landlord's personnel and Mr. Rosenshine, in particular, whom she repeatedly called a "liar" during the hearing.



In light of these circumstances, the Court finds Mr. Rosenshine's testimony imminently credible when he stated that Tenant "unreasonably" refused to grant access to conduct the repairs and, specifically, permission to repair her kitchen floor and replace her stove. While Tenant and her counsel strongly reiterated that there was a dangerous "gas leak" in the stove, a careful review of the HPD Violation Reports reveal that there was no actual leak of gas. When read together, the Reports merely state that the old stove's "pilot light was inoperative," so that the light would not automatically light the gas when turned on, but must be manually lit with a match or starter. With respect to the kitchen floor, Landlord offered several samples of linoleum flooring for Tenant to choose, but she wanted and eventually got on her own hardwood floors. The ulterior motive appears to be that Tenant just wanted a nicer and different floor and stove than the ones offered by Landlord, and that is not the standard for a rent abatement for such conditions. Hence, this Court concludes that no rent abatement shall be awarded for those items for that period of time (see Glencord Bldg. Corp. v Strujan, 26 Misc 3d 138[A], 2010 NY Slip Op 50227[U] [AT 2010], lv dismissed 17 NY3d 748 [2011] [modest rent abatement for leaky stove because of tenant's obstructive behavior]; Matter of DeKoven v 780 W. End Realty Co., 48 Misc 2d at 956 [no rent abatement for certain conditions]). For the same reasons, this Court denies Tenant's request for the reimbursement of her out-of-pocket repair costs for the kitchen floor and replacement stove.

III.



Based on the evidence and testimony adduced herein, Tenant successfully proved by a preponderance of the credible evidence the existence of certain rent-impairing conditions in the Premises of which Landlord had notice for the period between August 2012 through August 2013. As a result, Tenant is entitled to a 20% rent abatement for that period, calculated as follows: 12 months at a rate of $1,146.42 per month totals $13,757.04, and accounting for a 20% abatement of the same, amounts to $2,751.41, plus the reimbursement of $848.98, yields a grand total of $3,600.39 as an abatement.



In accordance with the foregoing, Landlord is entitled to a Final Judgment against Tenant [*7]in the amount of $12,449.49 ($16,049.88 minus $3,600.39) as all rent due through March 2014. Following service with Notice of Entry of this Memorandum Decision, issuance of the Warrant of Eviction would be hereby stayed five days for Landlord to receive payment from Tenant's counsel's escrow account. The foregoing constitutes the decision, order and judgment of the Court.

E N T E R:



Dated: June 17, 2014

Bronx, New YorkJ.H.C.



To:Emanuelli & Pilloti

1188 Grand Concourse

Bronx, New York 10456

Joon H. Park, Esq.

5914 Spencer Avenue

Bronx, New York 10471

Footnotes


Footnote 1:It should be noted that the Notice of Petition and Petition, however, reflect a monthly rent of $1,154.10 for the Premises.

Footnote 2:As per the Rent Ledger in evidence, between December 2012 to March 2014, there are sixteen months multiplied by the monthly rent of $1,146.42, equals $18,342.72, minus two months of rent payments made by Tenant of $2,292.84, totals $16,049.88.