[*1]
100 W 174 LLC v Haskins
2014 NY Slip Op 51673(U) [45 Misc 3d 1222(A)]
Decided on November 26, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 26, 2014
Civil Court of the City of New York, Bronx County


100 W 174 LLC, Petitioner-Landlord,

against

Michelle Haskins, Respondent-Tenant.




L & T 067870/2013



Howard Fritz, Esq.



Buglione, Fritz & Associates, LLC



4419 Third Avenue, Suite 4B



Bronx, New York 10457



Richard N. Kahn, Esq.



BOOM! Health Legal Services



540 East Fordham Road



Bronx, New York 10458


Javier E. Vargas, J.

Memorandum of Law, Affirmation & Exhibits Annexed..........................1



Exhibits and Photographs at Trial..............................................................2



[*2]



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

I.



For approximately ten years, Respondent Michelle Haskins ("Tenant") has been the rent-stabilized tenant-of-record of the subject Premises located at 100 West 174th Street, Apt. 3E, in the Bronx, New York, which are owned by Petitioner 100 W 174th, LLC ("Landlord"). Tenant lives in the apartment with her three minor children, ages 17, 4 to 2. It is undisputed that the Premises, which are subject to the Rent Stabilization Laws of 1969 and have been duly registered with the New York State Division of Housing and Community Renewal ("DHCR"), have a monthly rental of $1,053.96, according to the Petition. Both the Tenant and Landlord's agents were the primary witnesses at the rent-abatement hearing conducted by the undersigned for several intermittent days between May 7, 2014 to August 6, 2014, during which the following facts were gleaned.



As early as 2009, Tenant had reported numerous defects in her apartment to the Department of Housing Preservation and Development of the City of New York ("HPD"). As relevant herein, starting in March and April, 2013, an HPD Agent visited and inspected the Premises finding numerous violations and conditions in need of repair. Some were corrected, but several remained unabated and other new violations resurfaced in the ensuing eleven months. Specifically, the HPD Violation Notices noted that there were "broken and defective ceramic tiles," "evidence of water leak ceiling," need to paint and a "broken or defective shower body at bathtub" in the bathroom. Another visit, on July 19, 2013, found: (1) need to plaster defective surfaces and paint the entire apartment with a light-colored paint; (2) "repair or replace smoke detector" and carbon monoxide detecting devices in the entire apartment; (3) "repair with similar material the broken or defective wood floor" throughout the apartment; (4) "repair the broken or defective connection waste line pipe at sink in the kitchen;" (5) replace the broken bathtub in the bathroom; (6) "abate the nuisance consisting of rodents [and] evidence of rats in the entire apartment;" and (7) repair the broken "spring balance lower sash south windows" in the kitchen and bedroom. The list of these HPD Violation Notices issued for the subject Premises were admitted into evidence, without opposition, and establish both the existing conditions and that Landlord was on notice of said conditions.



Ten days after the inspection, on July 29, 2013, HPD returned to the Premises to ascertain compliance with the Violation Notices, only to find that no repairs had been made. Indeed, the majority of the violations remained unabated on the inspection conducted on September 10, 2013, with the exceptions of the windows and kitchen sink, which were apparently repaired. An additional violation was found in the apartment with respect to the existence of cockroaches, and the most serious Class C violation in the apartment continued, to wit: "abate the nuisance consisting of rodents [and] rats in the entire apartment." With respect to this, Tenant testified that it was "gross" to live in the apartment with all those rodents, that she was unable to cook or store food in the kitchen, and was sometimes afraid to stay alone in the apartment because of the [*3]large rats. Pictures admitted into evidence show cereal boxes, a package of Ramen noodles and a Wesson vegetable oil bottle, all with what appear to be rat holes on them as well as photos of large dead rats. Photographs of the Premises' front entrance door show large unpainted patches, scratches, holes and overall misalignment. On October 9, 2013, there still were water leaks in the bathroom ceiling and walls needing paint in several rooms. Faced with Landlord's failure to heed her constant telephonic calls and comply with HPD violation notices, Tenant apparently began to withhold her monthly rent payments. Even with this rent retention, no repairs were conducted. Instead, Landlord demanded for Tenant to pay all the arrears owed by then, but Tenant failed to do so.



As a result, by Notice of Petition and Petition filed November 18, 2013, Landlord commenced the instant nonpayment proceeding against Tenant to recover three months of rent arrears totaling $2,714.26, possession of the apartment and reasonable costs and legal fees. By Answer dated December 2, 2013, Tenant answered generally denying the allegations and raising as an Affirmative Defense that her Premises were in need of repairs in violation of the Warranty of Habitability embodied in Real Property Law § 235-b. Tenant attached to her Answer a letter from Lutheran Social Services of New York, dated October 1, 2013, stating that Tenant participates in their family treatment rehabilitation services and that, in assessing the safety of her home, they determined that her "current residence has an infestation of rats and cockroaches which pose a serious health risk to her children."



On the first appearance, December 6, 2013, Tenant requested an adjournment to obtain counsel and the parties consented to Landlord inspecting and repairing certain of the conditions in the Premises, including paint and fix holes throughout, problems with the refrigerator and stove and extermination of vermin throughout the Premises. On February 4, 2014, Tenant appeared represented by BOOM! Health Legal Services, listed several repairs to be made by Landlord, and the matter was adjourned for a rent abatement hearing. It appears that Landlord still failed to make the previously agreed-upon repairs. Among the conditions listed, which were confirmed by HPD Violations Notices dated February 7, 2014, were: (1) rat and cockroach infestation; (2) paint and repair leaks throughout the apartment; (3) broken/defective wood floor with scratched, dirty and peeled linoleum tiles; (4) broken kitchen light fixture; (5) broken kitchen and bedroom window spring balance; (6) missing bathroom door and scratched and rusted bathtub; (7) missing carbon monoxide detector and smoke alarm; and (8) damaged entrance front door, which had to be opened with a screwdriver. These violations continued, as Tenant testified, through inspections conducted on April 7 and 30, 2014, at which time other Class C violations were found in the existence of hazardous peeling and deteriorated paint in the apartment that tested positive for lead content, and the absence of, or defective, window guards.



In defense of its case, Landlord's Field Manager of the Building, Lawrence Seecharan, and its Superintendent, Rigoberto Castillo, testified before the undersigned. Mr. Seecharan testified that the Landlord's office received "repetitive" complaints about repair conditions from Tenant, probably on the nature of "once per month." He stated that he would take pictures of the Premises, and write work orders with regards to her damaged wood floor, inoperable front door lock, broken bathroom door, cabinet and mirror. None of those photographs were introduced into evidence. He further testified that the Premises were dirty and unkept by Tenant and her children, but acknowledged that he did not go to conduct the repairs, that other workers did. [*4]Among those workers was the Super, Mr. Castillo, who confirmed that he went on several occasions to repair Tenant's apartment because her children would repeatedly cause damage to the Premises, including breaking the bathroom cabinet and mirror, clogging the toilet and damaging the front door lock. He stated that he had to repair holes in the walls made by Tenant's oldest son as well as to replace the broken front door lock on three or four different occasions. Mr. Castillo testified that the Premises were "the only place [where the] lock is broken." According to Seecharan and Castillo, all of the violations were repaired in May 2014, including the replacement of doors, the repair of the windows and wood floors, the repair of the bathroom, the plastering and painting of the walls and ceilings, and the installation of a smoke/carbon monoxide alarm.



At the conclusion of the hearing, the Court afforded counsel the opportunity to obtain the hearing transcript, submit post-hearing memoranda and reserved decision on August 6, 2014. Only Tenant's counsel submitted an undated Post-Trial Memorandum of Law on September 16, 2014, wherein she seeks an abatement of $11,488.16 for all the months of serious conditions at her Premises, and reasonable counsel fees.

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.



This implied warranty protects "against conditions that materially affect the health and safety of tenants or deficiencies that in the eyes of a reasonable person * * * deprive the tenant of those essential functions which a residence is expected to provide" (Solow v Wellner, 86 NY2d 582, 588 [1995], quoting Park West Mgt. v Mitchell, 47 NY2d 316, 328 [1979]; see Assoc. v C.W., 24 Misc 3d 1225[A]; 2009 NY Slip Op 51617[U] [NY Civ Ct 2009]). Although the "landlord is not required to ensure that the premises are in perfect or even aesthetically pleasing condition; he 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]). Among the conditions which materially affect the "health or safety" of the occupants of a building are "insect or rodent infestation, insufficient heat and plumbing facilities, significantly dangerous electrical outlets or wiring, inadequate sanitation facilities or similar services which constitute the essence of the modern dwelling unit" (id. at 328). 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 [*5]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," and 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]).



Applying these legal principles to the matter at bar, Tenant has sufficiently established an entitlement to a rent abatement for all the deplorable conditions which existed in her apartment for over one year. Preliminarily, the parties stipulated on the record that Tenant owes over two months of rent at $2,700 between November 2012 through May 2014. She properly raised the habitability defense in her Answer. Addressing that claim for an abatement, Tenant credibly testified as to multiple ongoing conditions in her apartment for over six months, and her oral notifications of these conditions to the Landlord or its agent, which are the essential elements of a rent abatement claim (see 1097 Holding LLC v Ballesteros, 17 Misc 3d 1111[A], 2007 NY Slip Op 51925[U] [NYC Civ Ct 2007]). Tenant specifically testified and provided a list of HPD Violation Notices of the defective front door, chronic rat and cockroach infestation, broken wood floors and peeling paint throughout the apartment, cracked bathtub and bathroom ceiling leaks, and the unusable kitchen due to the presence of rodents. Although there was no testimony as to Tenant's housecleaning habits or how often she used the kitchen to cook for her or her children's meals, her testimony and the 17 photographs submitted into evidence show a dingy and chaotic apartment in need of cleanly painted walls, repair of damaged floors and doors, and extermination for vermin. Indeed, there were Violation Notices issued for those particular conditions on several occasions by the experts at HPD.



It is also clear that Landlord's Superintendent and agent ignored Tenant's "repetitive" calls and entreaties, and took their time in attempting to repair the abovementioned conditions and successfully repaired very few, while others were left unaddressed for over one year. This Court is appalled by Landlord's failure to correct these hazardous conditions "that materially affect[ed] the health and safety of" Tenant and her three children for such a long period of time, despite Court Orders and temporary Stipulations of Settlements. Under these circumstances, this Court finds that Tenant has sufficiently shown an entitlement to a rent abatement of 40% of the rent for the abovementioned conditions of the front door, bathroom, kitchen and windows, from March 2013 until May 2014, when the repairs were certified as completed by Landlord (see 501 New York LLC v Anekwe, 14 Misc 3d 129[A], 2006 NY Slip Op 52513[U][AT 2d 2006] [40% rent abatement for rat and cockroaches infestation and damaged cabinets]; 1097 Holding LLC v Ballesteros, 17 Misc 3d 1111[A] [25% abatement for ceiling leaks and rat infestation]).

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 March 2013 through May 2014. As a result, Tenant is entitled to a 40% rent abatement for that period, to wit: 14 months at a rate of $1,053.96 per month totals $14,755.44, and calculating a 40% abatement of the same, amounts to $5,902.18.



In accordance with the foregoing, Tenant is entitled to a Final Judgment for breach of the warranty of habitability against Landlord in the sum of $5,902.18 for all rent due through May 2014. Based on the extant circumstances of the indigent Tenant, this Judgment shall be applied by Landlord as a credit to Tenant towards her future rents until fully satisfied. Tenant's additional and conclusory application for legal counsel fees without the submission of the governing Lease or any other evidence of counsel's time and fees is denied without prejudice. The foregoing constitutes the decision, order and judgment of the Court.

E N T E R:



Dated: November 26, 2014

Bronx, New YorkJ.H.C.