BACKGROUND

This summary nonpayment proceeding was commenced by JEDDAH MADISON CORPORATION(Petitioner) against STEVEN VORNEA (Respondent) the tenant of record seeking to recover possession of 529 West 113th Street, Unit 2, New York, New York 10025 (Subject Premises) based on the allegation that Respondent has failed to pay rent due for the Subject Premises.

Petitioner issued a rent demand dated June 16, 2014, seeking $8,500 in rent for the month

Respondent appeared by counsel on August 12, 2014, and filed an answer and counterclaims. The answer asserted breach of warranty of habitability, constructive eviction and a claim for attorneys' fees. The proceeding was initially returnable August 20, 2014.

On December 8, 2014, the proceeding was transferred to Part X for assignment to a Trial Part, and then assigned to Part N for trial on the same day. The trial commenced on December 8, 2014, but then adjourned by the court sua sponte for a French Interpreter for Petitioner's first witness. The proceeding was adjourned to January 8, 2015, for continued trial. On January 8, 2015, the court conducted negotiations with the parties, but no settlement was reached.

On January 28, 2015, Petitioner moved for an order declaring a mistrial and seeking the recusal of Judge Saxe. On February 18, 2015, Judge Saxe granted the motion, and the proceeding was referred back to Part X for assignment to a new Trial Part.

On March 4, 2015, the proceeding was assigned to Part R for trial. The trial commenced on April 1 and concluded on April 2, 2015. The proceeding was adjourned through May 6, 2015 for the submission of post trial memorandum, and the court reserved decision.

Petitioner is the owner of the Subject Building pursuant to a deed dated June 20, 2012 (Ex 1). There is a valid MDR for a period through and including September 2015 (Ex 3).

Respondent is the tenant of record for the Subject Premises. Respondent entered possession of the Subject Premises pursuant to a lease between Petitioner and UC Funding dated July 31, 2012, for a term through and including August 14, 2013, at a monthly rent of $8,5000 (Ex 2). The lease was assigned to Respondent in February 2013 (Ex 8). The lease was subsequently extended, by amendment, through May 2014 (Ex 7), and then renewed again on May 8, 2014, for a period through May 15, 2015 (Exs 4 & 5).

Respondent stopped paying rent in May 2014. The parties stipulated that through April 14, 2015, there is a total of $93,500 in arrears, at a rent of $8,500 per month.

Respondent has lived in the Subject Premises since August 15, 2012. The Subject premises is a three bedroom duplex, on the lower level there is a kitchen, a pantry, a backyard, and living room. The upper level has a master bedroom and master bath, in addition to two other bedrooms and a second bathroom.

In the summer of 2012, there was a leak in the master bedroom, but it was promptly fixed by Petitioner.

On May 6, 2014, there was a fire in an upstairs unit that led to a significant leak in the Subject Premises. While there was no fire damage to the Subject Premises, there was water damage. Petitioner immediately hired a company, Serve Pro, which came in and set up de-humidifiers, industrial fans and cut some holes in the ceiling.

Respondent submitted a photograph taken on May 8, 2014, that shows one of the machines set up by Serve Pro (Ex I). The picture shows the first floor of the Subject Premises, which appears pristine and undamaged, even immediately after the flood. Respondent testified that when he returned to the Subject Premises that evening he found everything covered with dust because Serve Pro had failed to properly connect one of the machines. Respondent called Allison, Petitioner's managing agent, and she had the people from Serve Pro return the next day to clean the Subject Premises. Respondent was not satisfied with their efforts and hired his own company to clean. The cleaning was completed on May 12, 2014. Respondent submitted a paid bill for $8,262.81 "For Taxable Fire Damage Restoration Services Rendered" from Maxons Restoration (Ex J).

At the end of May, Respondent had a meeting with Emanuel Houze (Houze), a principal of Petitioner. Respondent and Houze agreed that the washer needed to be repaired, and dryer in needed to be replaced. Petitioner agreed to allow Respondent a rent credit of up to $1100.00 for same and would apply said amount as a set off against rent (Ex 6). In June 2014, Respondent purchased a new washer and dryer (Ex M).

Respondent testified that Houze agreed that Respondent did not have to pay rent and that he could instead use the funds in renovating the Subject Premises and for the washer and dryer. The court does not credit this testimony, which is contradicted by the emails in evidence, and any amendment to the lease would have to be in a writing signed by both parties per paragraph 42 of the original lease agreement (Ex 2). The court does not draw any negative inference from Houze's failure to testify and finds that both parties agreed that the issues regarding repairs after the flood were handled primarily by Allison on behalf of Petitioner.

Respondent testified that after May 2014, he only used the first floor of the Subject Premises and that he slept in the living room. Respondent testified that he could not and did not have his children visit after May 2014, and could not have guests. The court did not find these portions of Respondent's testimony credible, and the testimony is contradicted by other evidence in the record. For example, on June 9, 2014, Respondent emailed Allison that he has been sleeping in the guest room since the flood (Ex 6). On June 10, 2014, Respondent states he has guests staying at the Subject Premises for a visit and while the guests are there he is sleeping on a blow up bed in the living room. He also states he has children staying with him (Ex 6). In general, the court found that Respondent's testimony lacked credibility and that he was evasive in responding to questions.

Petitioner had testing done for mold May 22, 2014 (Ex K). On June 9, 2014, Allison emailed Respondent about gaining access for repairs and asking that Respondent move items in the center of the rooms for repairs. Respondent replied that they needed to discuss a remediation plan before any work commenced. On June 10, 2014, Allison emailed Respondent seeking access on June 11 for a professional to take measurements for the remediation, and stated all necessary materials could be removed within two days. Respondent declined to agree stating that before any work could proceed, Petitioner would have to submit to him a remediation plan he found acceptable, and implied that further access requests or discussions about remediation should go through his attorney (Ex 6).

On June 16, 2014, Allison emailed Respondent asking for proposed access dates over the next couple of days. Allison stated that Petitioner had hired a company Immaculate Air Solutions that had done mold testing, had the results as well as a general protocol ready, but still needed to inspect themselves and take measurements to prepare a proper plan for removal (Ex E). Allison and Respondent agreed to an access date for Friday June 20 at 10 am, and Allison emailed Respondent the inspection results and protocol (Ex E).

On July 1, 2014, Allison emailed Respondent seeking access on or about July 8, for the mold remediation work and stating that the work was estimated to take no more than ten days (Ex F). An outline of the work to be performed was attached to the email. Allison stated that after the work was done Petitioner would have additional testing done to make sure no further work was required.

Respondent would not agree to allow the work to start. Respondent's counsel emailed Petitioner's counsel on July 3, 2014 (Ex O) and Respondent replied to Allison by email on July 7, 2014 reiterating what his attorney had stated in the July 3 email:

While I would agree to provide reasonable access, much has to be done before mold remediation can begin on July 8, 2014. There should be more extensive testing than what has occurred thus far. We need to establish a work protocol ...., that measures are taken for my contents, proper containment is established, contingency plans if more mold is discovered during the remediation and post remediation testing. ... My lawyer advised your lawyer about my concerns (Ex N).

Respondent hired Edward Olmstead (Olmstead) who did mold testing at the Subject Premises on July 28, 2014. Olmstead concluded there were unacceptable levels of mold in the master bedroom and in the hallway, just outside the master bedroom. Olmstead's findings were submitted in a report in evidence (Ex D). On December 15, 2014, Respondent's counsel submitted a copy of Olmstead's report to Petitioner's counsel (Ex T-6).

To attempt to satisfy Respondent, Petitioner agreed to retain a second mold remediation company, Pro-Lab to go to the Subject Premises, test for mold and prepare a remediation plan. From August through October access issues were handled through counsel.

There was further email correspondence between counsel regarding access dates for additional mold inspections in October 2014 (Ex T-2) and the parties agreed to Thursday October 23, 2014 for Immaculate Air Solutions to conduct a complete air test of the Subject Premises (Ex T-4). Pro-Lab did an inspection of the Subject Premises on October 29, 2014, but did no further work.

Petitioner solicited proposals from two other mediation companies. One from Maxons' Restorationm, the company Respondent had hired to clean up the Subject Premises in May 2014. Petitioner did not hire Maxon's because the proposal was too expensive. Petitioner obtained a [*3]proposal from a less expensive company, but that proposal was never forwarded to Respondent.

On November 18, 2014, Petitioner, through counsel, sought access for a remediation team to take photos and measurements, and Respondent agreed to a date after Thanksgiving (Ex T-3). Access was scheduled for early December 2014 (Ex T-5).

As of the date of the trial, no further mold remediation work had taken place in the Subject Premises. At the close of its case, Respondent requested a 60% abatement on its breach of warranty of habitability claim.

DISCUSSION

New York Real Property Law §235-b provides for an implied warranty of habitability. Landlords of residential premises are required to keep the premises "fit for human habitation" and free of conditions that are dangerous, to the life, health or safety of the tenants ( Park West Management Corp. v. Mitchell, 47 NY2d 316 at 327).

If the landlord breaches the warranty of habitability, the proper measure for damages 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 ( Park West Management Corp. 47 NY2d 316, 329)."

The court finds that an impermissible mold condition existed in the Master Bedroom of the Subject Premises, and a portion of the hallway outside the bedroom, and that such condition constituted a breach of the warranty of habitability. While the court does not find that this condition rose to the level of an actual partial eviction, Petitioner was clearly on notice of the condition from May 2014 forward and had not addressed the condition as of the date of the trial.

Respondent did impede Petitioner's efforts at access, and tried to impose his view of how the repairs should be done. However, Petitioner agreed to subsequent additional testing and after having same done, never ultimately took steps to force the issue of the work proceeding or pursue additional access dates for the work. The court has factored in the resistance in providing access in determining the amount of the abatement.

Based on the foregoing, the court finds that Respondent is entitled to a 35% abatement for the period of May 15, 2014 through April 14, 2015, which abatement totals $32,725.00.

Respondent is additionally entitled to a set off of $1100 for the purchase of the new washer and dryer.

Based on the foregoing, Petitioner is awarded a final judgment in the amount of $54,675.00 for all rent due through April 14, 2015. The issuance of the warrant is stayed five days for payment.

No order to correct was requested or is issued, and the court notes the underlying lease is about to expire.

Both parties argue in their post trial memos that they are the prevailing party entitled to attorneys' fees. However, the court finds such arguments premature as a determination as to [*4]prevailing party status must be based on the decision issued after trial. The requests for attorneys' fees are denied without prejudice to renewal by motion now that said decision has been issued.

This constitutes the decision and order of the Court.^[FN1]

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