| Gottesman v Graham Apts., Inc. |
| 2015 NY Slip Op 50570(U) [47 Misc 3d 1213(A)] |
| Decided on April 5, 2015 |
| Civil Court Of The City Of New York, Kings County |
| Thompson, 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Howard
Gottesman, Plaintiff,
against The Graham Apartments, Inc. and DEKALB MANAGEMENT, INC., Defendants. |
DECISION and ORDER
Date(s) of Trial/Hearing:In or about May 1987, the Graham Apartments, Inc., was incorporated as a New
York corporation and remains a valid New York State corporation. The Graham
Apartments, Inc., is the owner of the real property and building located at 3171 Whitney
Avenue, Brooklyn, New York. The building is a 3-story brick structure that contains 28
residential apartments and no commercial stores. According to the parties, and the other
records submitted to the Court, the Graham Apartments, Inc. is a private residential
cooperative corporation as opposed to a private residential cooperative corporation that is
regulated by the state and/or city governments exclusively for low and moderate income
families (e.g., Housing Development Fund Corporation).Graham
Apartments is managed by Dekalb Management, Inc. Dekalb Management, Inc. is the
registered managing agent for the subject premises and manages the day-to-day operation
of the property.On January 23, 2002, the Plaintiff purchased the shares
allocated to apartment 1G at the subject premises in an arm's length transaction.
According to the evidence presented, the parties executed a proprietary lease, which
commenced on January 23, 2002 and terminates on December 31, 2037 unless
terminated sooner pursuant to the terms and conditions of the proprietary lease (Plaintiff's
Exhibit "2").The Plaintiff secured a mortgage from Citigroup (Citi Mortgage, Inc.) for a
sum of $80,000.00 to purchase the cooperative apartment and the accompanying shares.
The Plaintiff assumed occupancy of apartment 1G as a single adult from January 23,
2002 to August 11, 2004 and he occupied the apartment alone.On August 11, 2004, it is
undisputed that gallons of water entered apartment 1G. It is also undisputed that there
was an accumulation of water in the rear and in the front of the building on the
aforementioned date. According to the record, there was about an inch to an inch and a
half of water above the flooring and subflooring of the apartment that irrefutably caused
reparable and irreparable damages to Plaintiff's floors, carpeting, rugs, baseboards,
moldings, doors, crown moldings, service lines and personal property. In addition to
apartment 1G, apartments 1A, 1B and 1E were also flooded and similarly affected by the
water entering the building.Certain members of the Cooperative Board of Directors were
present to observe the accumulation of water in the rear and front of the building and had
the opportunity to enter the Plaintiff's apartment to observe the water damage in the
subject premises. According to the Plaintiff, in direct contradiction of his complaint (see
Amended Complaint at ¶ 131), he spent the night in his apartment, keeping the
windows open and all ceiling fans on in an effort to help evaporate the water in the
apartment. The Plaintiff, on August 12, 2004, purchased three (3) large window fans and
"Damp-Rid", a moisture absorbent product, to "help evaporate/absorb the remaining
water that was under the hardwood floors and the saturated carpeting." (Amended
Summon and Complaint at ¶ 32).On August 12, 2004, the Plaintiff filed a claim
with his individual insurance carrier for the subject apartment-State Farm Insurance. The
claim was denied on the grounds that "the loss stemmed from water entering the
apartment from outside and traditional insurance policies, including Plaintiff's, only
cover water losses from the inside water source (i.e. broken pipe in wall, bathtub
overflow, etc.)." (Amended Summons and Complaint at ¶ 136).Plaintiff notified the
President of the management company, Pamela DeLorme, on August 11, 2004, August
12, 2004 and August 17, 2004 of the water damage and conditions of mold/mildew odor
in the subject premises.[*3]The Plaintiff claims that the
Defendant did not provide the name and policy number and other pertinent information
of the Defendant's insurance carrier-Greater New York Insurance Company (hereinafter
referred to as "GNY") to submit his claim.On October 8, 2004, Barry Dickerson of GNY
inspected the subject premises and surveyed the property and building. On November 16,
2004, the claim was denied by GNY. To the Plaintiff, this denial was based on alleged
inaccurate information supplied to the carrier by the Defendant and not based on the
validity of the actual claim. Additionally, the Plaintiff stated that his insurance carrier
also denied his claim. Notwithstanding the denial of the claims by both carriers, neither
party performed any repairs in the apartment.On December 1, 2004, the Defendant
engaged Dr. Charles E. Gilbert, Toxicologist/Epidemiologist, and James O'Regan,
Certified Environmentalist of the Epidemiology and Toxicology Institute of Hauppauge,
New York to inspect the apartment.On December 27, 2004, Dr. Charles E. Gilbert and
Mr. Sarah Gilbert issued a 7-page report which found, inter alia, visible fungi
bloom; microbial smell; the entire Maplewood floors cupped and stained; all water
boards wet in all rooms; and both bacterial count and fungi count were well above
acceptable legal guidelines in all the tested rooms. The report determined the presence of
various penicillin and aspergillums blooms and found that the blooms were due to the
water intrusion into the apartment. More relevant to the issue at hand, the report
concluded that the apartment was not fit for human habitation unless the conditions are
remediated. The report also established that the water ran into Plaintiff's apartment
through the side walls. Lastly, the report describes the practices and procedures accepted
and employed by the mold and water damage remediation industry to ameliorate the
conditions in the subject apartment.From in or about August 11, 2004 to the date of trial,
the Plaintiff did not use or occupy the subject apartment as his residence.The Plaintiff
claimed that in or about February 2005, the Board of Directors approved and authorized
the remediate work that was required in the subject apartment and agreed to pay for the
remedial work. In reliance on the alleged agreement with the Defendants to correct the
conditions in the subject apartment, the Plaintiff retained a moving and storage company
to remove his property from the unit. The Plaintiff contends that members of the Board
told him that he was responsible for the removal of all his personal property from the
apartment and the corporation would be responsible for the expenses incurred in the
remedial work. In addition, the Plaintiff claims that he paid the superintendent of
building, Mr. Francisco Salcedo, to disconnect the washer and dryer from the gas lines so
that the washer and dryer could be removed from the apartment. Additionally, he made
arrangements with a flooring and carpeting retailer to install new flooring after the
cleanup. He allegedly made these arrangements for these installations prior to the
removal of his furnishings from the apartment.In or about March 2005,
the Plaintiff states that the Board of Directors rescinded their agreement to correct the
conditions. The Board of Directors were unwilling to impose yet another assessment
against the shareholders to correct the conditions in his apartment. The basis of their
decision, he claims, was the lack of income.In or about October 2006, the Graham
Apartments had the defective catch basin pipe repaired.As set forth above, in or about
August 13, 2011 through August 14, 2011, rain water allegedly accumulated in or about
the subject premises again and [*4]permeated the
Plaintiff's apartment causing "additional damage to the floor, walls and Plaintiff's
personal property therein beyond what had existed since the August 2004 flood and
further exacerbating and worsening the mold condition inside said apartment, which had
existed since the flood in August 2004" (Amended Summons and Complaint at ¶
237).In or about July 27, 2007, the Plaintiff, pro se, commenced
the instant action on the above grounds. After issue was joined, the parties engaged in
extensive motion practice. After efforts of resolution failed, the parties proceeded to trial.
The trial testimony and documentary evidence submitted is more fully set forth
below.
Both parties made lengthy opening statements. Briefly, the Plaintiff
seeks a 100% rent abatement or alternatively, an injunction for mold remediation or an
award for damages for the complete costs of the remedial work. In addition, the Plaintiff
seeks punitive damages for the failure of the Board of Directors to remediate the
conditions in the apartment. The Plaintiff lastly asserts rights to legal
fees.In their opening, the Defendant argues that the Plaintiff, a law
graduate, with a Masters Degree in Public Administration and a captain in a New York
City Police Department, acted in bad faith. The Defendant avers that this was a
"money-grabbing" effort by the Plaintiff to get a windfall for 3 to 4 times the value of the
subject apartment. He argues that the Plaintiff is married, has moved on, lives someplace
else and sincerely believes that it was the intention of the Plaintiff to never really assume
the responsibility on the lease, to clean up the apartment and to take care of it. The
attorney alleges that the Defendant acted prudently under the circumstances, but the
Plaintiff "disappeared". Counsel claimed that the Plaintiff never gave a key to the
apartment to the Graham Apartment, Inc., never gave them access and therefore, was the
cause-in-fact of the damages to the apartment.The Plaintiff proceeded with his
case-in-chief by calling himself, Howard Gottesman as his first witness. Mr. Gottesman
testified that he currently resided at 1004 East 5th Street, Brooklyn, New York 11238.
The subject premises is a private one-family dwelling, which he occupies with his wife
and two small sons. Mr. Gottesman testified that he has a law degree and is currently
employed by the New York City Police Department.In regards to the subject building,
Mr. Gottesman described the building as a 3-story building which encompasses about
half of a city block with a stucco front and is light brown in color. He indicates that there
are 20 apartments in the subject premises and the building does not contain a basement.
Mr. Gottesman acknowledged that the building is a cooperative corporation, and that he
purchased the subject premises in January 2002.The witness testified that although he
does not recall receiving a proprietary lease to the subject premises at closing of title, he
has resided there since the date that he purchased the apartment. He stated that he has
paid his monthly maintenance and other charges to Dekalb Management on behalf of the
Graham Apartments since the inception of his tenancy. The witness testified that
Plaintiff's Exhibit "1" in evidence on consent, are the maintenance payment stubs from
the monthly statement that he receives from Dekalb Management. These statement stubs
are dated from August 1, 2004 through and including June 30, 2011.The
witness stated that on August 11, 2004, the [*5]apartment
was flooded with tremendous amounts of water. He described that the water invaded his
apartment from wall to wall, specifically asserting that there was no part of the apartment
that was not covered with water. The witness testified that the depth of the water was an
inch to an inch and a half (1"-1½") above the hardwood floor. The area that the
witness described was a hardwood floor in his living room and he described it as being at
least one inch above a concrete slab. It was clear from his statements that there was new
hard wood flooring installed on top of this concrete slab.The witness stated that other
parts of his apartment, specifically, the kitchen, bathroom and master bedroom did not
have hardwood floors but other flooring. He testified that he looked in all of the places
that a reasonable person would have looked such as the vanity, the kitchen sink and the
pipes to the washer and dryer to determine the source of the flood waters. The witness
then stated that he went to his window that faced the rear of the building and observed
that there was nearly one foot of water in the rear of the property. The witness stated that
"it looked like a swimming pool, and it was raining out and I said to myself, that must be
where the water is coming from." (Gottesman-tr. at p. 52, lines 7-11;
1/16/2013).As he exited the apartment, he stated Ms. Coraci, the
President of the Board of Directors, and other tenants were standing and talking near the
garbage compact room. The witness stated that Ms. Coraci, at one time or another,
entered his apartment. At that time, the water was visible above the hardwood floors.
Then, later, Ms. Coraci, identified as the Vice President, and Mr. Michael McCormick, a
board member entered the apartment to observe the conditions. In addition to the other
individuals, on the same day, August 11, 2004, the witness testified that he also spoke
with Ms. DeLorme, who was identified as the President of Dekalb Management,
notwithstanding this conversation with Ms. DeLorne, the Plaintiff did not make any
specific request of her on that evening, but did notify her of the flooding throughout the
building and his apartment.The witness further testified that he did not have a "string
mop in his apartment but a sort of rectangular head mop to clean floors" (Gottesman-tr at
p. 63, lines 15-17; 1/16/2013). He tried to soak up as much water as he could. However,
he acknowledged, that "it was almost silly. There was so much water. It was a futile
attempt to soak up all the water with what I had." (Gottesman-tr. at p. 63, lines 22-24;
1/16/2013). He further " grabbed what, in my mind, anything that would absorb water
that was readily available, like bath towels, sheets that I had and I just dumped it in the
water in an effort to soak up the water, and threw it into the bathtub." (Gottesman-tr at p.
64, lines 1-5). The witness also acknowledged that the efforts that he made were not
effective at all based upon the fact that there was too much water. (Gottesman-tr at p. 64,
lines 6-9; 1/16/2013). The witness further testified that "later that evening, [he] opened
all the ceiling fans [as] it stopped raining outside.' I opened the window to try to get
some fresh air into the apartment and the ceiling fans to help create a draft or a breeze to
get rid of the water." (Gottesman-tr at p. 64, lines 21-25; p. 65, lines 1-5;
1/16/2013).In addition, the witness testified that he had a window box
fan which was portable, and he used that fan in the living room. He angled the fan down
toward the floor where he stated that he was attempting to make an effort to get a draft
going onto the water to get rid of the water. (Gottesman-tr. at p. 65, lines 2-8;
1/16/2013). Mr. Gottesman acknowledged that his efforts to remove the water did not
seem to be working.Mr. Gottesman used no further efforts that night to
remove the water and acknowledged that on that night, he did not sleep in the apartment.
He claimed that there were wires running in the place where the slab was exposed and
did not think it was safe, contrary to his claims in the summons and complaint.
(Gottesman-tr. at-p. 65, lines 17-25; p. 65, [*6]lines 1-2;
1/16/2013).The witness further testified that he could not recall when he
went back to the apartment after he stayed at his mother's home that evening. But he
could distinctly remember when he did return, which may have been the next day, all he
remembers seeing is dirt on the floors. At that time, the walls had water marks on them
and dirt along the baseboard. The carpeting in the master bedroom was completely
saturated; he remembered it sloshing when he walked on the carpeting. More than
anything else, he recalled that the apartment had a mildewy smell, and tremendous
amount of dampness hung in the air. (Gottesman-tr. at p. 67, lines 8-15; 1/16/2013) The
witness was also clear that none of the above conditions existed in the apartment prior to
the flood.The witness goes further to describe the floors in the apartment confirming with
the Court that they were one size. The flooring was level throughout except there was
about a foot to 2 feet of space at the rear of the apartment where a radiator had been
removed that he was able to see down onto the space between the subflooring and the
main floor. The witness further testified that his hardwood floor in the living room was
above a concrete slab floor. He stated that when he returned to the apartment that the
space between the hardwood floors and the concrete slab was filled with water. He was
able to observe this condition between the wall where the old air conditioner had been
located and the installation of the new air conditioning in that area of the apartment.
Based on this view, he assessed the depth of the flood waters to be one inch to one and a
half inches (1"-1½").The witness further testified that he purchased Damp Rid,
which is a product that removes dampness in humid environments. This Court was
familiar with this product as described on the record. The witness testified that he
obtained the bucket version (which sits on the floor) and the hang up version of the
Damp Rid product. He continued to purchase the Damp Rid products so that the products
would absorb the moisture from the air. He continued to go in and out of the apartment to
assess the condition for about six to eight weeks and during this time, the Damp Rid
products took as much moisture as possible from the apartment. He stopped using the
product, because according to him, the products no longer absorbed the moisture. At one
point, he went to the apartment at least 4 times a week for this six to eight weeks, and
subsequently, he went less often.In addition, the witness stated that it was less than a
week after the flood that he started seeing specks' on some of the walls which he claimed
was mold. The witness further testified that he began seeing these specks between 1 to 2
weeks after the flood. He noticed the specks in the office, which was the room when you
walked into the apartment. As he continued to come in and out of the apartment, he
remembered that the mold became more and more visible in the closets and in other
areas. The witness continued to describe how the mold looked and how the mold affected
different parts of the property, specifically the closets, and was probably 2 to 3 feet from
the baseboards in the apartment. (Gottesman-tr. at p. 76, lines 18-23; 1/16/2013).The
witness continued to describe that after 5 weeks, upon his entering the apartment, the
condition got worse in the master bedroom, hallway and small bedroom; eventually the
mold went into the kitchen. Notwithstanding the fact that the kitchen contained marble,
where there was a drywall, the witness said that he started noticing little bits of mold on
the drywall and many weeks down the road, 8 weeks or more, he started to notice that the
cabinet above eye-level and the ones below, the wood trim on them started growing a
different type of mold, almost like the kind you peel off with your hand. (Gottesman-tr.
at p. 79, lines 16-25; 1/16/2013). The mold grew worse over 8 weeks after the flood. For
a large part of his testimony [*7]he continued to describe
the way that the mold looked and where it was located in the respective parts of the
apartment. The witness testified that the mold was especially bad against the wall that
was adjacent to the outside of the building. (Gottesman-tr. at p. 80, lines 20-21;
1/16/2013). The witness described that the mold was at least 2 to 3 feet on many walls
throughout the apartment, and in the closet it was wall-to-wall.The
witness further testified that, as the conditions in the apartment got worse, "realization
kicked in that you can't live here. You are not going to be living here. It was very
depressing thing to go back. I was going back primarily for the mail, to pick up my mail
and to just make certain my apartment was not looted by someone who may have known
that I did not live there anymore." (Gottesman-tr. at p. 83, lines 12-18; 1/16/2013).The
witness further testified that he got light-headed when he went into the apartment and
therefore, did not remain for any substantial period of time. Although he tried and was
"bent on staying here I couldn't physically stay in the apartment It was so choking the
smell. You become lightheaded. I became lightheaded . I could not live there ."
Gottesman-tr at p. 84, lines 3-9; 1/16/2013).The witness testified that at least 8 to 10
weeks after the water had come into the apartment that the Maplewood floor was stained,
raised up and the door was stuck in a particular position in his office; in the second
bedroom, the door did not open and close properly because it was bowing. The witness
testified about the condition of the floors throughout the apartment describing them as
"cupped and bowed" in certain spots and water stained throughout the
apartment.He further testified that he was only able to stay there an hour
and a half and at that point, he was forced to vacate the apartment, because it was a very
"toxic" environment. (Gottesman-tr at p.86, lines 16-23; 1/16/2013).
Additionally, the witness testified that he used all kinds of chemical products including
commercial chemical products to remove the mold from the walls but found that the
mold was inside of the walls and notwithstanding his cleaning, the mold could not be
removed.The witness further testified that over the 8 weeks after the initial flood, he
communicated with the President of the Board and the managing agent in writing and
verbally. The court admitted into evidence Plaintiff's Exhibit "3," a letter dated August
17, 2007, in which the Plaintiff notified Pamela DeLorme, as President of Dekalb
Management, Inc., of the details of the flood on August 11, 2004 and subsequent
conversations and communications on August 12, 2004 and August 17, 2004 regarding
the flood and damages to his apartment. His letter was stated that he intended to assert a
claim against the Graham Apartments, Inc., the managing agent and any vendors of the
Defendant corporation based on their failure to "ensure that water from outside the
building does not enter [his] unit and parked vehicle." "If you did not as of yet, it is
essential that you make this claims known to all insurers immediately as per the probable
policy terms and conditions as to protect coverage in this matter." (Plaintiff's Exhibit "3"
in evidence.)He further testified that it was Ms. DeLorme that indicated to him that they
could not get in touch with him. The witness was befuddled by this alleged claim by the
Board or the agent that they could not reach him because he had provided his contact
information in the last paragraph of Plaintiff's Exhibit "3" which states his work number,
beeper number, and an email address.Subsequently, the witness had admitted into
evidence Plaintiff's Exhibit "4," a letter dated September 13, 2014 to Ann Coraci, as
President of the Board of the Defendant corporation, stating that numerous verbal
requests have been made to her and to Dekalb Management for [*8]disclosure of the policy number and claim number of their
insurance carrier. The Plaintiff claimed that the agent informed him that a claim for his
property damages had been submitted to their insurance carrier. Although he had verbally
notified the Defendant many times, this letter constituted a formal request of the name of
the insurance carrier, the policy number, the date that they reported a claim, the contact
number, address and the telephone number of the representative at the insurance
company who was handling the claim. The letter also requests a reply in writing.After
some conversation with Ms. DeLorme, in December 2004, the Board had an inspection
conducted of the subject apartment by Dr. Gilbert and his assistant. Dr. Gilbert and his
assistant were at the apartment for 2-3 hours. The Plaintiff left while they conducted the
inspection. The inspection confirmed that there was mold and other contaminates in the
apartment. Subsequently, after the report was given to him and the Defendants, the
witness stated that Ms. DeLorme agreed to have the environmental conditions rectified in
the subject apartment. She allegedly stated that the Board would pay for the repairs
including the removal of several feet of wall space above the floor to correct the mold
condition and to replace the flooring. He claimed that she stated that the co-op, through
its managing company, would be responsible for the repairs and he would be responsible
for making arrangements to have his furniture and other personal property removed from
the apartment during the cleanup process.The witness further testified that he was
relieved after he got the report that he was justified in not living in the apartment.
According to the witness, Ms. DeLorme represented to him that the company that she
hired to perform the remedial work was "A" rated and would do a good job.
Subsequently, the witness testified that the report and the letter admitted into evidence as
Plaintiff's Exhibit "5" was an agreement by the Board to complete the required repairs in
the subject apartment. It is the opinion of this Court that Plaintiff's Exhibit "5" does not
explicitly state that the work would be done or that there was a specific access date for
the work to be done. The only statement in the letter that might be construed as language
that such agreement could be implied by the Court is the final paragraph, which reads
that "[t]he Board of Directors is now reviewing the tech cleanup proposal. Once this is
resolved, I will coordinate the necessary work with you."The witness testified that shortly
thereafter, he starting making preparation for the removal of his furniture and other
personal items, then he was indirectly informed that he had to speak to management
about the proposed cleanup. The Plaintiff testified that he immediately called the
management company and spoke with Ms. DeLorme. He told her that he had hired a
moving company and he was ready to go; he had packed his boxes and was informed that
there was a problem. He said that she told him that the Board had changed its mind and
that the cost of the proposal was too expensive. He also testified that he had a
conversation with Ms. Coraci, the President of the Board, and she informed him that
after a meeting, the Board stated that it was too expensive to restore the apartment to its
pre-flood condition and that the Board determined that the mold condition was created by
his own failure to allow access to the apartment immediately after the flood like the other
shareholders.On the following trial date of January 17, 2013, the case proceeded with a
continuance of the direct examination of the Plaintiff. He testified that he submitted a
claim to the Defendant's insurance company, "under a negligence theory, even though I
am not a party to that insurance." (Gottesman-tr. at p. 5, lines 5-6; 1/17/2013). He
testified that his claim was denied by GNY. Although his insurance company had denied
the claim, the Plaintiff failed to submit a written declination from his insurance company
in evidence; he just claimed that nothing ever happened. The GNY declination was
provided by the Defendant, not the Plaintiff.The witness further testified that after he
vacated the apartment, he resided with his mother in his childhood room from the night
of the flood on August 11, 2004 until he got [*9]married
in or about June 28, 2010; at that time, he was 28 years old. He acknowledged that he
never paid rent to his mother but " he helped her out here and there with expenses".The
witness further testified that at one point, he had to obtain another apartment and entered
into a lease for that apartment which commenced on June 1, 2010 and terminated on May
31, 2011. Subsequently, he executed a lease renewal for the same apartment which
commenced on June 1, 2011 and terminated on May 31, 2012. Mr. Gottesman stated that
the reason why he had to get this apartment was that he was getting married, and he was
not going to move his new wife into his mother's apartment.He described the new
apartment as an old apartment with 5 rooms and one bedroom. It was considered a "Jr.
4"- a small apartment. It was a considerably smaller apartment than his coop apartment
and there were no real amenities with the new apartment. He liked the Graham apartment
better; the new apartment was not really desirable; it was near Q train line, and there was
lots of commercial traffic in the area. It was about 2 miles away from his coop apartment
and located in the Midwood section of Brooklyn. Subsequently, the Plaintiff introduced
into evidence Plaintiff's Exhibit "7" and "8," which were the lease agreements for the
new apartment.During this time period that he lived in the new apartment, he continued
to pay the monthly maintenance, electric, natural gas, telephone lines and the mortgage at
the Graham Apts.The witness further testified that the monthly mortgage payments were
automatically deducted from his account. The witness testified that he took a mortgage in
the sum of $80,000.00 pursuant to a 15 year term at a fixed interest rate of 6 1/8%.
Subsequently, Plaintiff's Exhibit "9" was admitted into evidence over objection; the
Court specifically taking judicial notice of the ACRIS online City Registry pursuant to
the New York Technology Law. Furthermore, Plaintiff's Exhibit "10A", a bank computer
record of his mortgage interest, was admitted into evidence. The witness testified that the
total amount of interest from August 11, 2004 to the date of trial was $24,404.15.
(Gottesman- tr. at p. 34, lines 1-9: 1/17/2013).As equally significant, despite the fact that
there was a flood in the building in 2011 and the Plaintiff amended his complaint to add
this new cause of action, he did not testify about this flood or proffer any evidence of
exacerbated damages to his apartment for the alleged 2011 flood.Furthermore, the
Plaintiff admitted Plaintiff's Exhibit "12 A-J" that are photographs of the subject
apartment in or about 2012. The witness stated although these photographs were taken in
2012, they fairly and accurately show the conditions from to 2005 through 2012.
(Gottesman-tr. at p. 57, lines 1-8; 1/17/2013). As far as the witness was concerned, very
little had changed. After the introduction of the aforementioned photographs into
evidence, the Plaintiff rested his case-in-chief.Prior to trial continuation on February 27,
2013, the parties stipulated and agreed to the admission of the report from Tech Clean
Indoor Environmental Services as Defendant's Exhibit "F". To the Plaintiff's knowledge,
the author of this report, Mr. Cofey, never inspected the apartment.Mr. Gottesman then
testified on cross-examination that he has a joint degree; a degree from John Jay College
and a degree in forensic science. He obtained his degree between 2000-2005. He
obtained a Master's Degree in public administration; and now holds a Juris Doctor. He
obtained these degrees while he resided with his mother in her apartment.[*10]He has been employed by the NYC Police Department
since July 18, 1996. When he first started in the police force, he was a probationary
police officer. Within three years, he was promoted from police officer to Sergeant after
taking the Sergeant's test. Within four years, he took another competitive examination
and became a Lieutenant. Then, he went on within another 4 year period and took a
written test to became a Captain and now serves at that high rank.He purchased the
subject apartment in 2002. He stated that he inspected the apartment before he purchased
it without the assistance of a home inspector or engineer, and also visited the building.
During his ownership of the apartment, he never participated in any shareholder's
meetings, reviewed any financial statements or met with the Board at any of their
meetings. He also indicated that he never reviewed the financial statements or offering
plan prior to closing, or reviewed the other corporate bylaws and amendments before his
purchase; neither did he know if his attorney reviewed the offering plan. He also
acknowledged that he never tried to obtain a copy of the original lease or stock
certificate.The witness testified that he closed title in January 2002. He claimed that he,
the bank representative and the seller were present at closing, but no one from the Board
or managing agent was present. Additionally, he disclaimed any knowledge of the
whereabouts of the original stock certificate and/or proprietary lease.He further testified
that the total co-op price was $100,000.00. He made a down payment of $20,000.00 and
borrowed $80,000.00 from the bank to secure a mortgage for the subject premises. He
acknowledged his signature on page 42 of Plaintiff's Exhibit "1".He also stated that he
commenced this action pro se. He conducted an EBT of some of the Defendants
and represented himself at his own EBT. He also stated that he represented himself,
pro se, from 2007 through and including 2010 and retained his present counsel at
the trial stage of this action.He testified that he had 2 locks on the front door of his
apartment. He changed the top locks and stated that the bottom lock, a deadbolt lock, was
never changed. He acknowledged that he never furnished the Graham Apts., their Board
officers or their agents, the Managing agent, or superintendent, a key to the top or bottom
lock to the apartment. He claimed that he had no knowledge that he was required to
provide them with a key to his apartment.The witness also testified that there was never
any written notice from the Graham Apts. or its agents requesting access at any time.The
witness testified that despite the co-op's refusal to provide any relief for his apartment, he
paid his maintenance from the date of the flood through 2011. He further testified that
Plaintiff's Exhibit "5," in his opinion, was an acknowledgement by the Board that the
work would be done at their expense; all he had to do was to coordinate the removal of
his personal property.The witness further testified that he suffered personal property
damage in his apartment in the sum of $50,900.00 -$55,800.00. No evidence was
presented to establish the value of the property loss.He stated that he was denied his
claim by both [*11]insurance carriers, but acknowledged
that he did not bring any action against his insurance carrier or the Defendant's insurance
carrier. He stated that the basis for their denial was that the insurance policy did not cover
exterior flood damage or rain damage.The witness further testified that he stopped paying
the maintenance because he could no longer afford to pay the maintenance in the
apartment and the mortgage at his new home.He acknowledged that he took no remedial
measures in the apartment. He admitted that the co-op did not tell him that he was
prohibited from conducting any work himself. He, like the coop, stated that he did not
have the money to complete the work. In addition, he also stated that he did not seek to
borrow the money to restore the apartment or to remediate the conditions in the
apartment.On February 28, 2013, the witness continued his testimony. He told the Court
that he never thought about doing the repairs himself. He also made no efforts to sell his
apartment as a possible solution to his lack of funds to perform the repairs.He
acknowledged that he purchased a home in the amount of $937,000.00. He purchased it
with two mortgages: $625,000.00 as a first mortgage and a second mortgage for
$150,500.00 from an equity line of credit. The witness testified that he was still a
shareholder, was current in his mortgage on the apartment, and current on his first and
second mortgages on his home. He was delinquent with his maintenance payments as of
the date of trial.The Plaintiff states that he is making a claim for damages to his furniture
but a claim for storage of the furniture. Despite this claim, the Plaintiff did not present
any evidence of the damages or any estimate of the value of the damaged furniture.On
redirect, the witness testified that the co-op continued to refuse to provide him with
information to obtain the name and policy number of the insurance carrier for the
building.He also claimed that he had to purchase a home because he had a growing
family, two small sons. He claimed that due to his religious beliefs, he was restricted in
where he lived. He was required to live near the Synagogue; he had to purchase a home
in his community in order to exercise his religious freedom.After he was excused, the
Plaintiff next called Paul F. Blank as an expert. The witness testified as to his
background. More pertinent for this decision, he was a contractor, primarily in Nassau
County, where he renovated kitchens and bathrooms. As a contractor, he gave estimates
for renovations by pricing out materials, labor and the number of hours to complete the
work. Additionally, he has worked for various insurance companies including
Progressive where he was involved in auto insurance; and for Allstate as a home adjuster
where he estimated the loss in residential homes, assessed damages and reviewed vendor
estimates on behalf of the company.The witness testified that he has done estimates on
fires, floods, sewer backups and pipe freezes. All insurance companies including but not
limited to Liberty, Amica and Fireman's, all have standard estimates throughout the
country and create estimates by the use of a computer program called Xactimate. This
program relies upon zip codes and the cost of materials in the pertinent area. He further
stated that while working for Allstate, he received training on water damage, remediation
and mold remediation, and obtained a certificate for the training.[*12]He further testified that he is an Adjuster. He has been
involved in mold cleanup in commercial and residential properties over the last 8 to 9
years. He states that he had worked for Tech Clean Environmental Services in mold
remediation for about 8 years. His other qualifications and certifications in toxicology
and epidemiology, made him an expert in toxicology and epidemiology, and mold
remediation.The witness testified that Mr. Gottesman allowed him access to the
apartment. He took measurements and made a visual assessment. Based on his
inspection, the Plaintiff admitted into evidence Exhibit "13," his prepared report. The
report recommended some demolition, protective gear from exposure to the mold, high
frequency air filters and other type of filters. The witness further described that it would
take 4 men each day for 5 days plus a supervisor to complete the removal of the damaged
materials and to remediate the mold and other toxic materials. Specifically, he stated that
the walls where the mold was "wicking" from the water damage was visible from the
bottom of the baseboards to mid-wall, approximately 4-5 feet of the wall, required
removal and replacement with new walls, the use of microbiological cleaners to remove
the mold in the interior walls and stubs, and the use of an air borne filtration system to
remove airborne mold. The total cost of this mold remediation is based on a local
database for that particular area, and the price of materials and labor would cost
approximately $31,352.24.During cross-examination, the witness stated that he was able
to base his costs solely on the information put into the Xactimate system. He further
states that he was not paid for this report since he wanted the remedial work for his
company. It took a couple of hours to complete the report and he appears in court to
testify on behalf of the Plaintiff voluntarily at no costs; his hourly rate is $175.00 an
hour. During his testimony, the witness acknowledge that the Xactimate program can be
manipulated and the costs of each room could be higher or lower.Next, the Plaintiff
called Pamela DeLorme as his witness. Ms. DeLorme testified that she is the President of
Dekalb Management and has been in that position since November 2001. The company
is a real estate management firm and have managed this building for approximately 10 to
11 yearsThe witness testifies that there were 2 catch drains in the subject building and
each had a run off from the New York City sewer system. The witness acknowledged
that in 2000 and in August 2002, there were floods at the property but there was a
dispute as to source of the floods. She specifically stated that, "I am aware that there was
water due to the angle of the parking lot from the way the building is positioned, the
catch basin filled with water, it didn't flood into the building but the parking lot, and that
immediate area was filled with water at a depth of maybe 3 inches". The witness also
testified after the flood of 2004, they discovered a second catch basin. In 2002, the catch
basin filled with water which in turn flooded the parking lot with about 3 inches of
water. In 2003, there was another heavy flood and the parking lot filled with water.
(DeLorme tr. at p. 11, lines 1-25, p. 12, lines 1-25).The witness acknowledged that after
the 2002 and 2003 floods, they had a company by the name of Varsity Plumbing to
investigate and find the source of the flooding. Varsity jet vacuumed, cleaned and
removed debris from 3 storm catch basins from the building that poured into the NYC
sewer system. In addition, the company made the following finding, to wit: "Found the
main storm line from the last catch basin, through to the city sewer connection, to be
collapsed at approximately twenty-seven (27) feet. This line must be replaced. Will
forward proposal concerning same." The Plaintiff admitted into evidence as Plaintiff's
Exhibit "15," an invoice dated September 30, 2003, for the services to the other basins.
As stated in the bill, the company submitted proposal Revision No.1, dated
November 11, 2003 for the [*13]excavation of
the defective pipes, installation of 30 linear feet of pipes to the property line and
connection of the existing storm piping at a cost of $29,200.00. Included also in
Plaintiff's Exhibit 15 is the executed Revision #2 for the same scope of work dated
June 28, 2006 in the sum of $35,624.00 that was executed by the parties on July
6, 2006. Lastly, as part of Plaintiff's Exhibit 15 is a paid bill dated October 30,
2006for the work stated above that was performed by Varsity from October 23,
2006-October 27, 2006 in the sum of $44,568.14. The bill states that the aforementioned
sum was paid by check no: 11119 on November 17, 2006. (Emphasis
added).The witness acknowledged that she had received the proposal and scope
of work prior to the August 2004 flood event in controversy in this action. Although the
witness acknowledged that prior to 2003, the Board of Directors was notified of the
deficient condition by Varsity Plumbing, from her memory, she remembered that the
repairs were not performed until July, 2006. Her testimony belies the dates stated in
Plaintiff's Exhibit "15" which states on the paid bill that the repairs were performed
between October 23, 2006-October 27, 2006.The witness also acknowledged that she
was in receipt of the letter, dated August 17, 2004, from Mr. Gottesman notifying her
office of the flood in his apartment.The witness did not know whether or not Mr.
Gottesman performed any repairs to his apartment. Her memory, she said, was not clear
after 8 or 9 years had passed since the incident. Notwithstanding the questions by the
Plaintiff's attorney, the witness's recollection was pretty clear that Mr. Gottesman simply
locked the door and walked away.The witness also acknowledged that she did not
provide the Plaintiff with the information for the insurance carrier for the building
because it was a policy of the Board of Directors to not release that information to the
shareholders. The Board of Directors did retain the company that she recommended to
inspect the apartment and she did send the Plaintiff a copy of the report and the estimate
of the remediation work. The report was apparently also forwarded to the
Board.Subsequently, the Board met to discuss the facts and the report, and then decided
not to perform any of the remedial work in the apartment. Although they did not see Mr.
Gottesman in the property, they were aware that he was picking up the mail. They did, in
fact, send notices to him but claim he was unreachable. As far as the witness was
concerned, notwithstanding the efforts to contact Mr. Gottesman, in her opinion, he had
abandoned the apartment.When asked about her ability to communicate with Mr.
Gottesman, she indicated that notwithstanding the fact that Mr. Gottesman had provided
two numbers for her to contact him, they were never able to reach him. When the flood
first occurred, they left messages at the police station seeking access to no avail. She
would often leave messages at the police station and was informed that he wasn't there
and to leave messages for him.The witness further testified that notwithstanding the
above report, the Defendant did not clean the apartment. The witness further testified that
it was the intention of the Board to clean up the apartment after the flood occurred, but
they could not get access. She stated that members of the Board spoke to Mr. Gottesman,
knocked on his door and left messages under his door the same day or the day after the
flood when they had the other apartments cleaned that were flooded on the first floor.
Despite the claims that there were [*14]notices placed on
the Plaintiff's door, the witness acknowledged that they did not have any copy of the
notices to the Plaintiff since it was more than 8 years ago.The witness testified that the
water penetrated the walls and heating system. She was firm that based on the fact that
water had entered the apartment from outside, the Board and her company did not
consider it "an emergency". Thus, they would have never entered his apartment without
his consent. Leaks from the inside of the building were considered "emergencies".
Although the witness testified that the Board could impose a special assessment to
perform the work, the Board did not elect that remedy under the proprietary
lease.Additionally, on cross-examination, the witness acknowledged a letter, dated
March 22, 2005, admitted as Exhibit "G", was written by her. In her letter to the Plaintiff,
Ms. DeLorme affirmed the Board's position that it was his fault that the apartment was
contaminated with mold; the letter stated " it is the position of the Board that you
permitted the mold condition to grow. If you had not vacated your apartment and cleaned
up the water correctly, this condition would never have existed."Exhibit "F", the report
from Tech Cleans, the cost for the remedial work as of January 21, 2005 was $9,750.00.
The costs today would be double or triple that price due to the deterioration of the
apartment.The witness further testified that at least as far back as 2005, Mr. Gottesman
never retained anyone to repair the apartment.On redirect, the witness further confirmed
that the other apartments that were cleaned by the Graham Apartments were done by the
superintendent who used a wet vacuum and cleaned the floor and walls. When asked by
the court why the Board of Directors did not clean the Plaintiff's apartment, the witness
stated that, "because the Board of Directors felt he locked the door and walked away, and
wouldn't have gotten to that point if he had just simply let it be cleaned up when the other
two apartments were cleaned up. The other two apartments had water on the floor and
walls. They dried up the apartments and wet vacuum everything right away the following
morning. Since they did not have access to his apartment, they could not do the work.
They had tried to do it at different times but especially the Board President put notices
under his door, and he didn't respond, so we felt he just abandoned the apartment, and
that's why." ( DeLorme, tr. at p. 46, lines 24-25; p. 47, lines 1-21: 2/27/2013).On
February 27, 2013, Ann Coraci, a member of the Board of the Defendant corporation,
was called by the Plaintiff as his witness. She testified that she has lived in the subject
building since April 10, 2001. She became a Board member three years later and in
August 2004, she was a witness to the flood in the building. She further testified that
three apartments were flooded. She went inside the subject apartment. She states that she
never received Plaintiff's Exhibit "4", the letter from the Plaintiff. She indicated that the
Plaintiff only verbally notified her regarding the flood in the apartment. She indicated
that two of the other apartments were cleaned up by the building, but in Mr. Gottesman's
case, he left the property and never came back. He never even asked the Board to clean
up the apartment, as far as she was concerned.She also testified that no one entered the
apartment after the flood except for Tech Clean who entered years later to assess the
damages. She acknowledged that she smelled mold on the date of the flood and
continues to smell mold in the apartment from the outside door of the apartment.On
cross-examination, the witness revealed that [*15]she was
born August 29, 1928 and that her memory was not that good. However, the witness
recalled that there were three apartments that were affected by the flood on the first floor.
Despite her memory loss, she was adamant that she had never received the letter from
Mr. Gottesman about the flood. She only remembered that he called her on the telephone
and said that he called her a couple of times. When asked whether or not there was a
point that they had someone go into the apartment and check for mold, she said, "no, he
just left and never came back." (Coraci, tr. at p. 7, lines 1-7:2/27/2013).On the adjourned
date of March 15, 2013, the Plaintiff rested. There was some dispute over Defendant's
Exhibit F. The Defendant reserved the right to call Veronica Kero, and the case was
adjourned until April 23, 2013.On April 23, 2013, the Defendant moved for a directed
verdict. The Defendant contends that the Plaintiff failed to prove any of the claims in the
summons and complaint including the covenant of quiet enjoyment and breach of the
warranty of habitability. In addition, the Defendant moved to dismiss the breach of
contract claims. The Defendant denies liability for the breach of the warranty of
habitability based on the grounds that the Plaintiff abandoned the subject apartment.The
court reserved decision and directed the Defendant to proceed with its case-in-chief.The
Defendant called Veronica Kero, from Omega Environmental Services, Inc. Mrs. Kero
has a Masters in Environmental Engineering. She has been a professor of engineering in
both New York State and New Jersey. She is a certified industrial national hygienist. She
is a graduate from Rutgers College and has had training at the New Jersey Institute. She
has been a certified engineer for more than 20 years from 1989 until now. She specializes
in environmental health and safety, and mold and indoor air quality. She has testified in
court many times: 15 times in New York and 15 times in New Jersey. She is employed by
Omega Environment; a company that conducts environmental consulting inspections,
and lead testing and chemical testing of any air borne and water pollutants. She has been
involved in hospitals, homes and in Hurricane Sandy projects. The Defendant's motion to
qualify her as an expert was granted. In addition to the above, her resume was submitted
to the Plaintiff pursuant CPLR§3101(d).Her company was employed as an
environmentalist to inspect the apartment. Defendant's Exhibit "H", a 38 page report that
summarized the finding of mold on the hard surfaces and in the air was admitted into
evidence. She opined that mold progressed based on excessive humidity in the apartment.
The tests show that all areas of the apartment required mold remediation and abatement.
The witness testified that if the remedial work had been done within at least 24 hours
after the flood, it would have cost less than $5,000.00. However, to the perform the work
now, it would cost in excess of $36,288.00 including clearance testing.The witness
further testified, on cross-examination, that Xactimate provides an industry standard for
prices. She testified that the mold remediation work would take 2 to 3 weeks based on
multiple factors. She further testified that her report and findings were in conformity with
Tech Clean's report; but, the real different is the scope, not the layout of the project. She
testified that there is no certain way to truly know the cost of supplies and that there is no
guarantee on the price for remedial work. She did claim that Tech Clean's report was too
detailed and overpriced. In her opinion, her company's plan was less expensive, and
would involve coordinating the rebuild plan. She also indicated that price depends upon
the contractor that was obtained by the parties and the price would be based upon unit
price, labor and other factors.[*16]At the conclusion of
this testimony and a waiver of any rebuttal by the Plaintiff, both parties rested. The case
was marked sub judice.
As described above, the Plaintiff alleges that the Defendant's negligence was the cause in fact of the damages that he sustained to his personal and real' property, that is, the destruction of the subject apartment. The common law and pertinent state statutes must be examined to determine if the Plaintiff has a cause of action and has proven the elements of those causes of action as stated in his complaint and his testimonial evidence.
The documentary evidence and testimonial evidence reveal that there are several theories of law that are applicable in this case. Specifically, negligence, comparative negligence, waste, the breach of the warranty of habitability and breach of contract.
The common law defines negligence simply as the lack of ordinary care. "It is a failure to use that degree of care that a reasonably prudent person would have used under the same circumstances. Negligence may arise from doing an act that a reasonably prudent person would not have done under the same circumstances; or, on the other hand, from failing to do an act that a reasonably prudent person would have done under the same circumstances". (Pattern Jury Instruction 2.10.) The commentaries to this section of the PJI states that negligence is relative to time, place, circumstances and persons, and what may be negligence to one person may not be negligence to another. (Levine v New York, 309 NY 88, 127 NE2d 825 (1955); Sadowski v Long Island R. Co., 292 NY 448, 55 NE2d 497 (1944).
The Court of Appeals has stated it another way, "negligence is defined as the commission of some lawful act in a careless manner, or the omission to perform some legal duty to the injury of another. Nicholson v. The Erie R., 41 NY 525.
Under existing legal principles, the determination of liability based on negligence requires a four-tier analysis. The traditional elements require that there be: 1) a duty or obligation recognized by law, requiring the party to conform to a certain standard of conduct, for the protection of others against unreasonable risks. If there is no duty owed, there can be no liability. Cullings v. Goetz, 256 NY 287, 176 N.E. 397); 2) a breach by the party of that specific duty; 3) a reasonable close causal connection between the conduct and the resulting injury, commonly referred to as legal or proximate cause; and 4) actual damage or loss to another. Nicholson v. The Erie R., supra, Prosser on Torts, 4th Ed. pg. 143.The issue regarding the proper role of foreseeability has long been a subject of debate. The PJI cites Ohlhausen v New York, 73 AD3d 89, 898 NYS2d 120 (1st Dept 2010) for a long discussion of the foreseeability issue. See also Eiseman v State, 70 NY2d 175, 518 NYS2d 608, 511 NE2d 1128 (1987) ("[f]oreseeability of injury does not determine the existence of duty"); 532 Madison Ave. Gourmet Foods, Inc. v Finlandia Center, Inc., 96 NY2d 280, 727 NYS2d 49, 750 NE2d 1097 (2001) ("foreseeability of harm does not define duty"); Lauer v New York, 95 NY2d 95, 711 NYS2d 112, 733 NE2d 184 (2000) ("[w]ithout a duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm"); Bonomonte v New York, 79 AD3d 515, 914 NYS2d 19 (1st Dept 2010), aff'd, 17 NY3d 866, 932 NYS2d 421, 956 NE2d 1266 (2011), and Sheila C. v Povich, 11 AD3d 120, 781 NYS2d 342 (1st Dept 2004) (foreseeability "does not determine the existence of duty, but rather, the scope of that duty once it is determined to exist"). At least one court has observed in light of the foregoing cases that the Cardozo position in Palsgraf "may have undergone some adjustment," Ohlhausen v New York, supra.
Lastly, the issue of whether a defendant's negligence was the proximate cause of an injury is separate and distinct from the negligence determination, Ohdan v New York, 268 AD2d 86, 706 NYS2d 419 (1st Dept 2000). "A defendant may act negligently without that negligence constituting a proximate cause of the injury". "In order to find that defendant's negligence was a proximate cause of the harm caused to plaintiff, the jury must find that the negligence was a substantial factor in bringing about the injury (citing PJI). For a discussion of the issue of proximate cause, see PJI 2:70.
Viewing the instant case in the context of the above-mentioned principles, this Court must answer the following questions: 1) was there a duty owed by the Defendant to the Plaintiff? 2) was the duty breached? 3) was the breach of that duty the proximate cause of Plaintiff's injury? and 4) did the Plaintiff, in fact, suffer actual damage or loss?Comparative negligence is an affirmative defense; and must be pled and proved by the defendant. It is an affirmative defense (sometimes called "comparative causation"), whether intentional or willful misconduct, gross negligence or a breach of statute or contract. "Thus, it embraces any action based on breach of duty, whether through negligence, through breach of warranty or predicated upon strict liability, upon a violation of statute giving rise to civil liability or upon intentional misconduct, 1975 McKinney's Session Laws, 1482, 1483—1484, 1486. However, "neither comparative negligence nor contributory negligence is a defense to an action based on a statute imposing absolute liability, Giuffrida v Citibank Corp., 100 NY2d 72, 760 NYS2d 397, 790 [*25]NE2d 772 (2003); Mullen v Zoebe, Inc., 86 NY2d 135, 630 NYS2d 269, 654 NE2d 90 (1995) (comparative negligence no defense to an action by firefighter under General Municipal Law § 205-a); Bland v Manocherian, 66 NY2d 452, 497 NYS2d 880, 488 NE2d 810 (1985) and Zimmer v Chemung County Performing Arts, Inc., 65 NY2d 513, 493 NYS2d 102, 482 NE2d 898 (1985) (both holding that comparative negligence is no defense to an action by injured employee under Labor Law § 240); Dubois v Vanderwalker, 245 AD2d 758, 665 NYS2d 460 (3d Dept 1997) (comparative negligence no defense to action by police officer under General Municipal Law § 205-e)".
The defense of culpable conduct applies to both strict products liability and negligence cases. NY Prac., NY Law of Torts, §21:129; see also C.P.L.R. §1412; Tselebis v Ryder Truck Rental, Inc., 72 AD3d 198, 895 NYS2d 389 (1st Dept 2010); Gonzalez v Medina, 69 AD2d 14, 417 NYS2d 953 (1st Dept 1979); see Inglut v Consolidated Rail Corp., 185 AD2d 614, 586 NYS2d 41 (4th Dept 1992).In the Second Department, a plaintiff has not made out a prima facie showing of entitlement to judgment as a matter of law on the issue of defendant's liability unless plaintiff's submissions eliminate any triable issue of fact concerning plaintiff's comparative negligence, Mackenzie v New York, 81 AD3d 699, 916 NYS2d 511 (2d Dept 2011); Roman v A1 Limousine, Inc., 76 AD3d 552, 907 NYS2d 251 (2d Dept 2010); but see Yi Min Feng v Jin Won Oh, 71 AD3d 879, 895 NYS2d 856 (2d Dept 2010). In the First Department, most of the relevant case law supports the principle that a plaintiff may obtain summary judgment as to defendant's liability even though open questions exist about plaintiff's own negligence, Pace v Robinson, 88 AD3d 530, 930 NYS2d 581 (1st Dept 2011); Gonzalez v Arc Interior Const., 83 AD3d 418, 921 NYS2d 33 (1st Dept 2011); Strauss v Billig, 78 AD3d 415, 909 NYS2d 724 (1st Dept 2010); Tselebis v Ryder Truck Rental, Inc., supra; see Johnson v New York City Transit Authority, 88 AD3d 321, 929 NYS2d 215 (1st Dept 2011). However, in subsequent cases, that court has declined to follow Tselebis and its progeny, and has embraced the approach taken by the Second Department, Maniscalco v New York City Transit Authority, 95 AD3d 510, 943 NYS2d 486 (1st Dept 2012); Calcano v Rodriguez, 91 AD3d 468, 936 NYS2d 185 (1st Dept 2012).
Based on the above facts, the Court finds that both parties were negligent in their actions(s) with regard to handing the flood in the subject apartment and building.
The Defendant was negligent to the extent that the Defendant failed to use ordinary care to protect the Plaintiff and other building members from the unreasonable risk of harm to the Plaintiff and other occupants from water damage by the failure to correct the deficient condition of the sewer pipes that was determined by their independent contractor. It was highly probable that there would be heavy rains during the rainy seasons on the eastern coast of this country, specifically, in the fall and in the spring. Heavy rains have relentlessly permeated NYC in the more recent past, particularly, Hurricane Sandy, which clearly demonstrated that flooding is not uncommon in New York City.The common law doctrine of caveat lessee, which dates from the origins of English common law, was abrogated by the Appellate Division, Second Department, in Tonnetti v. Penati, 48 AD2d 25, 367 N.Y.S.2d 804 (1975). Prior to the Tonnetti decision, however, the doctrine of caveat lessee was not applied by some lower courts in summary proceedings for the nonpayment of rent, and an implied warranty of habitability was found and applied.
In the Tonnetti opinion, supra, Justice Shapiro wrote: "The doctrine of implied warranty of habitability has been the accepted policy of many of the judges of the Civil Court of the City of New York for a number of years" ( Groner v. Lakeview Management Co., 83 Misc 2d 932, 373 N.Y.S.2d 807, 808 (N.Y.C.Civ.Ct., NY County (1975); see, e. g., Jackson v. Rivera, 65 Misc 2d 468, 318 N.Y.S.2d 7 (N.Y.C.Civ.Ct., NY County 1971); Morbeth Realty Corp. v. Velez, 73 Misc 2d 996, 343 N.Y.S.2d 406 (N.Y.C.Civ.Ct., NY County, 1973); Steinberg v. Carreras, 74 Misc 2d 32, 344 N.Y.S.2d 136 (N.Y.C.Civ.Ct., NY County, 1973))." "Since the law, as a living organism, does not require that the dead hand of the past perpetuate remediable errors' . . . we relegate to the limb of history the orthodox view of caveat lessee and hold that, unless expressly excepted, there is an implied warranty of habitability when a landlord leases premises for residential use'." (48 AD2d at 30, 367 N.Y.S.2d at 808.)" Tonnetti v. Penati, supra, was decided on May 12, 1975, and shortly thereafter the Legislature enacted a statutory warranty of habitability which is implied into every New York residential lease (L.1975, ch. 597, eff. 8/1/75). The statute, Real Property Law, section 235-b, was subsequently amended in 1976 so as to add a third subdivision (L.1976, ch. 837, eff. 7/26/76).Courts have sustained the use of Real Property Laws 235-b as both a shield in a summary proceeding for the nonpayment of rent and as a sword in a counterclaim or in a plenary action. The warranty has been used in tort actions for both personal injuries (Kaplan v. Coulston, supra) and property damage (McBride v. 218 E. 70th St. Associates, supra). In no case has a court refused recovery for property damage, and there is nothing in the legislative history which indicates that damages are to be limited to a rent abatement. "Breach of implied warranty is generally treated as a form of strict liability where most of the difficult problems of proof in a negligence action are obviated (Guyot v. Al Charyn, Inc., 69 AD2d 79, 87, 417 N.Y.S.2d 941 (1st Dept. 1979), citing 47 N.Y.Jur., Products Liability, s 66)".
The breach of the implied warranty of habitability had already been pleaded in cases other than summary proceedings for the non-payment of rent before the Park West Management decision (supra) (See, e. g., Groner v. Lakeview Management Corp., supra). See also Kaplan v. Coulston, 85 Misc 2d 745, 381 N.Y.S.2d 634 (N.Y.C.Civ.Ct., Bronx County, 1976), a kitchen cabinet fell on the tenant, and subsequently, commenced an action for her personal injuries. The court adopted the theory of strict liability on the part of the landlord for personal injuries caused by a defect in the premises. This decision did not eliminate the burden of the plaintiff to prove the defect(s) in the premises; it did, however, eliminate the difficulty of proving negligence.This approach has not been adopted by all courts, although many people involved in a plaintiff's personal injury action based on defects in real property would welcome this approach (See Lipsig, Breach of Implied Warranty of Habitability in Residential Leases, NYLJ, October 30, 1979, p. 1, col. 1).
In many other cases resolved by summary judgment or bench trials decided after Park West Management, the Courts have awarded tenants money damages rather than rent abatements (See Goodman v. Ramirez, 100 Misc 2d 881, 420 N.Y.S.2d 185 (N.Y.C.Civ.Ct., Bronx County, 1979) (damages for "disruption of daily living"); Sargent Realty Corp. v. Vizzini, 101 Misc 2d 763, 421 N.Y.S.2d 963 [*28](N.Y.C.Civ.Ct., N.Y.County, 1979) (damages for flooding caused by neighboring tenants); H & R. Bernstein v. Barrett, 101 Misc 2d 611, 421 N.Y.S.2d 511 (N.Y.C.Civ.Ct., Bronx County, 1979) (damages for lack of water due to the acts of third parties). See also Blatt v. Fishkin, 101 Misc 2d 888, 422 N.Y.S.2d 283 (N.Y.C.Civ.Ct., Kings County, 1979) (cause of action for "adverse impact on life"); Brownstein v. Edison, 425 N.Y.S.2d 773 (Sup.Ct., Kings County, 1980) (complaint amended to permit action for breach of the implied warranty of habitability). Cf., Concord Village Management Co. v. Rubin, 101 Misc 2d 625, 421 N.Y.S.2d 811 (Dist.Ct., Suffolk County, 1979).)"