| Felice v Warf |
| 2019 NY Slip Op 29248 [65 Misc 3d 305] |
| August 7, 2019 |
| Guertin, J. |
| City Court of Middletown |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, October 16, 2019 |
| Jerry Felice et al., Claimants, v Robert Warf et al., Defendants. |
City Court of Middletown, August 7, 2019
Jerry Felice, claimant pro se.
Debra Coley, claimant pro se.
Robert Warf, defendant pro se.
Susan Webers, defendant pro se.
This is a small claims action by Jerry Felice and Debra Coley (collectively, the claimants) against Robert Warf and Susan Webers (collectively, the defendants) in which the claimants are seeking from the defendants the sum of $5,000 for breach of a lease or rental agreement (primarily nonpayment of rent) in connection with the defendants' rental of a residential cottage owned by the claimants and known as 236 Circle Road, Cragsmoor, New York (the property). The defendants filed a counterclaim against the claimants for a breach of the lease; the counterclaim seeks $5,000 from the claimants.
The claimants submitted their application to file small claims on April 15, 2019; the court mailed a notice of this action to the defendants on April 17, 2019, setting May 24, 2019, as the date for the trial. The defendants submitted their counterclaim on April 23, 2019, and the court, on April 23, 2019, mailed a copy of the counterclaim to the claimants. The parties appeared in court on May 24, 2019, for the trial; the claimants and the defendants appeared pro se. Coley, Felice, and Webers testified under oath and submitted documentary evidence for the court's consideration.
The credible evidence at the trial showed the following:
The claimants have owned the property for approximately 15 years and rented it to the defendants pursuant to a written residential lease agreement dated January 8, 2019 (the lease); the parties first discussed the possible rental in mid-December 2018. The term of the lease (a copy of which was accepted into evidence as claimants' exhibit 1) was 5
The defendants moved into the property on January 15, 2019, and paid the claimants $725 for one-half-month's rent as well as the $1,450 security deposit. The toilet on the property clogged and backed up on January 16, 2019; the claimants took care of that issue immediately (including having the septic pumped out and draining the leach field the same day) (claimants' exhibit 5, in evidence). The defendants did not experience further clogging or toilet back up after that January 16th occurrence. The defendants also sent a text on January 21st indicating the pellet stove runs "great for about 30 mins then shuts off" (defendants' exhibit F, in evidence), but Felice fixed the issue; in another text on January 21st Coley asked the defendants if they were warm, and they responded that they were. A text on January 22nd from Coley also indicated{**65 Misc 3d at 308} Felice was working on the dishwasher. There was no further evidence that the defendants complained, in writing, about other issues with the property (other than fleas, as discussed below) within the seven day period required under section 7.3.
On January 23, 2019, the defendants contacted Coley by text and claimed there were [*2]fleas on the property. Coley, who was in California at the time, contacted an exterminator (Ehrlich/Rentokil Steritech/Middletown Pest, referred to as the exterminator) who came to the property on January 25, 2019.[FN3] On January 25th, the exterminator treated various areas of the property (such as baseboards, cracks, crevices, floors, rugs, beds, and furniture) for fleas as noted in claimants' exhibit 2, in evidence without objection. Exhibit 2 also contains the following in the "general comments" section for the January 25th service (quoted verbatim from the report):
"Inspected interior of home Treated all baseboards and cracks and crevices floors rugs and carpet under and around beds and furniture and all other areas of concerns in all rooms of home for fleas also treated all beds and furniture with sterile fab customer didn't do much prep work a lot of stuff on floors avised them by next treatment should remove as much items from floor as they can customer should have a follow up visit in 2 weeks to treat again."
As will be described below, the exterminator treated for fleas despite not having found any flea activity at the property.
Coley and Webers exchanged text messages regarding the flea issue. Coley advised Webers in a text on January 23rd to
"vacuum just before they [the exterminator] come because the vibrations cause them [the fleas] to hatch . . . . They said it is not to clean but to vibrate the eggs so they hatch and die when they spray. Then they will come back out to spray again at a later date" (defendants' exhibit F, in evidence).
Webers noted in a text to Coley on January 25th that the exterminator "came this morning and sprayed and they are coming back in two weeks to spray again" (defendants' exhibit F). Coley followed up with a text on January 26th and asked if{**65 Misc 3d at 309} the treatment worked, and Webers responded by text, "So far so good thank you very much" (defendants' exhibit F).
The defendants, two days after the first treatment, called the exterminator for further treatment but were advised a treatment only could be applied every two weeks. Because of the defendants' additional complaints, the exterminator came back to the property on February 4, 2019, to treat for fleas; as noted in the "general comments" section for the February 4th service: "Inspected interior of home [and the] treated baseboards and cracks and crevices floors rugs and carpet under and around beds and furniture and all other areas of concerns in all rooms of home" (claimants' exhibit 2, in evidence). The exterminator also noted in the February 4th report, in the category of "[m]aterials used," that "no preparations used during this service."
Because of the defendants' complaints about the fleas and as an accommodation, but not because the claimants observed any flea activity,[FN4] the claimants reduced the February rent from $1,450 to $730; the defendants paid that amount for February rent. Felice also threw out a carpet that was on the property within a week of the defendants' first complaint of fleas, in the event there were fleas in the carpet.
On February 5th, the defendants met with Felice and reported to Felice a list of problems the defendants claimed they had with the property. They complained, among other things, that [*3]the front porch steps needed fixing; the pellet stove sensor didn't work correctly; the chimney was leaking; there weren't enough fire alarms in the property; the bedroom outlet was loose; and the dishwasher (which was a new replacement dishwasher purchased by the complainants) wasn't working. Webers claimed the claimants didn't resolve all of those issues (and Webers offered pictures of some of the alleged conditions; the pictures were accepted into evidence as defendants' exhibit G), but Felice testified, credibly, that he repaired all issues requiring repair.
The exterminator returned to the property on February 16, 2019, and, again, the exterminator noted on the report under "[m]aterials used" that "no preparations [were] used during this service" (claimants' exhibit 2, in evidence). In the "general {**65 Misc 3d at 310}comments" section for the February 16th service, the exterminator noted the following:
"Customer reports still having fleas inspected interior of home . . . found no visible activity at time of service placed glueboard monitor in areas of concerns also advised customer to try and save a sample cause this is the third treatment will need to see proof of activity if another treatment is needed" (claimants' exhibit 2, in evidence [emphasis added]).
Webers, contrary to the findings of the exterminator, testified that there was a flea infestation that only worsened as time went on. In a letter dated February 28, 2019, to the claimants (claimants' exhibits 3, 4, in evidence), Webers stated,
"[a]s you well know, this house has been INFESTED with fleas since before we moved in . . . [and] the exterminator has been here multiple times, January 25th, February 4th and February 16th, to no avail . . . I have woken up with fleas crawling on me, even on my face, and biting us, which I'm allergic to and have broken out in several rashes . . . We have actually had to go and stay at our parents' houses because it's unbearable and unlivable, which also compromises them to bringing fleas with us. We have not been able to even have a couch in what is supposed to be our own home because we have already caused everything we own to be a potential risk for infestation . . . This is deplorable and you have made numerous promises to correct these conditions and it has now been a month and a half and we can no longer live like this. We will be moving out," and she asserted that the claimants violated the warranty of habitability required under section 235-b of the Real Property Law.
Webers also offered various pictures (defendants' exhibit A, in evidence) dated January 23, 2019, February 15, 2019, March 2, 2019, March 3, 2019, and March 6, 2019, as proof of the flea "infestation." The pictures from January 23rd, March 2nd, and March 3rd show what appear to be bite marks on Webers' feet and body;[FN5] the February 15th picture purports to show two{**65 Misc 3d at 311} fleas on the bathroom sink; and the pictures from March 6th purport to show less than 10 fleas on glueboard traps.[FN6]
During cross-examination, Webers stated she saw a doctor for treatment but the doctor could not determine whether the bites were flea bites. Webers also admitted, during cross-examination, she never delivered the glueboard traps to either the claimants or the exterminator because she was "afraid [the claimants] would do something with them."
The defendants moved out on March 6, 2019. On March 7, 2019, the claimants placed [*4]glueboard traps around the property and claimed nothing ever showed up on those traps.[FN7] The exterminator also went to the property on March 15, 2019 (which was the exterminator's fourth visit to the property concerning the fleas). Again, the exterminator noted that "no preparations [were] used during this service" (claimants' exhibit 2, in evidence) and stated the following (verbatim) in the "general comments" section:
"Landlord Debra meet at location inspected interior of vacant home found 0 visible activity again at time of service we have treated over 4 times now for fleas where no activity was ever found no activity found on glueboard monitors tenants since have moved out on 3rd visit the male tenant told me he has never seen any activity but that his girlfriend said she had bites from fleas."[FN8]
The defendants, in Webers' February 28th letter to the claimants, demanded "a full refund for every dime we have spent, including POD costs and realtor fees" and listed $5,128.09 in expenses for which they sought the refund, including the security deposit of $1,450, "move in" cost of $725 (presumably the amount they paid for Jan. rent), the realtor's fee in the amount of $1,450, the February rent of $730, propane cost of $438.04, and the cost of a PODS storage unit in the amount of $335.05 (claimants' exhibits 3, 4, in evidence). The defendants, at trial, submitted receipts for those items listed together with additional PODS receipts and bills from Spectrum (Internet) along with miscellaneous receipts from Walmart,{**65 Misc 3d at 312} PetSmart, the US Postal Service, U-Haul, and Staples; the revised amount of expenses they claim resulted from the tenancy and the need to move out due to the alleged flea infestation totaled $6,514.92 (defendants' exhibit E, in evidence).
There are a number of issues raised by the testimony and evidence at the trial: did the defendants breach the lease by moving out March 6, 2019, and failing to pay rent for March through May 2019; if the defendants breached the lease, was the breach justified because the defendants were constructively evicted due to a breach of the warranty of habitability resulting from a flea infestation at the property, and if so, are the defendants entitled to damages; and if the defendants' claims fail, are the claimants entitled to damages due to the defendants' early termination of the lease. Each of these issues are addressed below.
1. Did the defendants breach the lease by moving out before the end of the term and failing to pay the rent due for March, April, and May 2019?
The lease term started on January 15, 2019, and ended May 31, 2019, with a monthly rental of $1,450. Both claimants and both defendants signed the lease and committed themselves to its rights and obligations. The parties, in section 12, acknowledged the lease contained their entire agreement, and, in section 13, the parties acknowledged they read, understood, and voluntarily agreed to the lease. In sections 7.1 and 7.2 of the lease, the defendants acknowledged inspecting the property and further acknowledged the property was suitable for the intended purposes and "in a good state of repair." By signing the lease, the defendants specifically acknowledged in section 7.2 "that at commencement of this Lease, all of [*5]the sanitary installations and equipment, electrical installations and equipment, keys, locks, doors, windows, wash basins, and taps are in a good state of repair and working order."
The defendants moved into the property on January 15, 2019, and paid $750 to the claimants for one-half-month's rent as well as the $1,450 security deposit. Although the toilet on the property clogged and backed up on January 16, 2019, the claimants took care of that issue immediately; Felice unclogged the toilet, and the claimants hired someone to pump out the septic tank and drain the leach field, all on January 16th. The toilet did not clog or back up after that January 16th occurrence.{**65 Misc 3d at 313} As noted above, copies of text messages (defendants' exhibit F, in evidence) show the parties addressed some issues with the pellet stove and the dishwasher within the seven day period contemplated by section 7.3 of the lease, but there was no other evidence the defendants complained, in writing, about conditions of and at the property (other than the issue of fleas, as discussed below) in the time period required by section 7.3 of the lease.
In early February, Webers complained about a list of alleged problems with the property that purportedly existed from the beginning of the lease, and she repeated those complaints in the defendants' February 28th letter (claimants' exhibits 3, 4); the complaints in February exceeded the time period set forth in section 7.3 of the lease. Based on Felice's credible testimony, either those "problems" did not exist or they were taken care of by Felice. The defendants' complaints about the condition of the property are disingenuous, especially in view of the specific statements in the lease that the property was "in a good state of repair" and the listed items were in "a good state of repair and working order." Some of the specific items listed in section 7.2 of the lease are the very things Webers complained about in February, despite having signed the lease and, in fact, despite both defendants specifically having initialed that page of the lease. The defendants also failed to notify the claimants in writing of any of those issues (other than as noted above) within the time required by section 7.3 of the lease. Webers' testimony regarding those issues or conditions at the property in February and thereafter was not credible.
The lease did not provide for early termination. The only reference to termination of the lease upon notice is contained in section 3.3, where it states, "[a]fter the initial period of the agreement this Lease may be cancelled by either the Landlord or the Tenant by giving 30 days written notice." In other words, neither party could terminate the lease until after the initial term; the initial term ended May 31, 2019.
In the absence of any other issues, then, the defendants breached the lease by moving out before the end of the term and failing to pay the rent due for March, April, and May 2019. The analysis does not end there, however, because of the defendants' claim of a flea infestation at the property.{**65 Misc 3d at 314}
2. Did the claimants fail to comply with the warranty of habitability because of a flea infestation at the property causing the defendants to be constructively evicted from the property, and if so, are the defendants entitled to damages?
In Webers' letter dated February 28th, the defendants stated they were moving out because of the conditions of the property and due to the claimants' alleged violation of the statutory warranty of habitability for a lease of residential property (Real Property Law § 235-b). The defendants, in essence, were claiming they couldn't live at the property (primarily, and most importantly, because of the alleged flea infestation) and, as a result, were constructively evicted [*6]from the property.
Residential leases in New York are governed by a warranty of habitability; that is (as set forth in Real Property Law § 235-b [1]),
"[i]n every written or oral lease or rental agreement for residential premises the landlord or lessor shall be deemed to covenant and warrant that the premises so leased or rented . . . are fit for human habitation and for the uses reasonably intended by the parties and that the occupants of such premises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety."
The New York Court of Appeals, in Park W. Mgt. Corp. v Mitchell (47 NY2d 316, 325 [1979], cert denied 444 US 992 [1979]), analyzed Real Property Law § 235-b as codifying existing case law and recognized that " 'the tenant [is] in parity legally with the landlord.' " According to the Court of Appeals,
"[a] residential lease is now effectively deemed a sale of shelter and services by the landlord who impliedly warrants: first, that the premises are fit for human habitation; second, that the condition of the premises is in accord with the uses reasonably intended by the parties; and, third, that the tenants are not subjected to any conditions endangering or detrimental to their life, health or safety" (id. [footnote omitted]).
That three-part warranty by the landlord is so important and necessary that "[t]he obligation of the tenant to pay rent is dependent upon the landlord's satisfactory maintenance of the premises in habitable condition" (id. at 327).
Although a residential landlord must satisfy the warranty of habitability, "a landlord is not required to ensure that the{**65 Misc 3d at 315} premises are in perfect or even aesthetically pleasing condition" (id. at 328). A residential landlord, however, warrants "that there are no conditions that materially affect the health and safety of tenants . . . [such as] insect or rodent infestation"; if there are such conditions, "in the eyes of a reasonable person, . . . [then], a breach of the implied warrant of habitability has occurred" (id.; accord Solow v Wellner, 86 NY2d 582, 588 [1995]; Park W. Mgt. Corp. at 327); however, "[w]e specifically rejected the contention that the warranty was intended to make the landlord 'a guarantor of every amenity customarily rendered in the landlord-tenant relationship' " (Solow at 588).
If there is a breach of the warranty of habitability, that can lead to a constructive eviction of the tenant (see Gawad v Aviad, 37 Misc 3d 126[A], 2012 NY Slip Op 51851[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).
"Constructive eviction . . . occurs when the . . . interference by the landlord with the possession of the tenant, or with the tenant's enjoyment of the leased premises is of such a substantial nature, and so injurious to the tenant as to deprive him of the beneficial enjoyment of a part or the whole of the leased premises" (Robert F. Dolan, Rasch's Landlord and Tenant—Summary Proceedings § 28.1 [5th ed & July 2019 Update] [citations omitted]).
Put another way, "[i]n order to establish a claim of constructive eviction, [a tenant] must establish by a preponderance of the credible evidence that [a landlord's] wrongful acts substantially and materially deprive the tenant of the beneficial use and enjoyment of the leased premises" (Gramatan Realty Corp. v Morrell, 59 Misc 3d 1217[A], 2018 NY Slip Op 50597[U], *1, *2 [Mount Vernon City Ct 2018] [citation omitted]).
In a claim of constructive eviction, however,
"[e]very deprivation of the beneficial enjoyment of the leased premises does not necessarily amount to constructive eviction. The deprivation must be 'substantial and effectual.' The acts of the landlord must preclude the tenant [*7]from the beneficial enjoyment of the premises . . . [A tenant] 'can establish an eviction only where he shows that the landlord's acts deprived him substantially of the consideration of the rental which he agreed to pay' " (Robert F. Dolan, Rasch's Landlord and Tenant § 28.22 [citations {**65 Misc 3d at 316}omitted]) and the landlord's actions or omissions "must be both serious and persistent" (id. § 28.23 [citations omitted]).
In addition,
"the deprivation of the tenant's beneficial use and enjoyment of his leased premises must be the result of some wrongful act on the part of the landlord . . . [and] 'it must appear that the landlord consents or suffers acts to be committed which are an obstruction to the beneficial enjoyment of the premises . . . . It should appear that the landlord has persistently neglected his duty, and that the apartment thereby becomes unfit for occupancy' " (id. § 28.25 [citations omitted]).
There appear to be no reported decisions addressing the effect of an alleged flea infestation on a residential (or commercial) tenancy and whether such infestation would violate the warranty of habitability and support a claim for constructive eviction. A bug infestation of any type would fall under the general classification of "vermin," which would include not just bugs but mice as well (Ludlow Props., LLC v Young, 4 Misc 3d 515, 519 [Civ Ct, NY County 2004]). In a residential context, however, not all vermin are alike; "vermin such as mice and roaches, which, although offensive, do not have the effect on one's life as bedbugs do, feeding upon one's blood in hoards nightly turning what is supposed to be bed rest or sleep into a hellish experience" (id.). There are a number of reported decisions involving bedbugs in the context of a landlord-tenant relationship, and while fleas and bedbugs are not the same and may not present precisely the same set of issues, this court will analyze the defendants' flea infestation claims by analogy and based on the guidance provided by bedbug, and other insect-related, decisions.
A bedbug or other insect infestation can cause a breach of the warranty of habitability (see e.g. Gawad v Aviad, 37 Misc 3d 126[A], 2012 NY Slip Op 51851[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012] [bedbugs]; Port Chester Hous. Auth. v Mobley, 6 Misc 3d 32, 34 [App Term, 2d Dept, 9th & 10th Jud Dists 2004] [insects and rodents]; Solow v Wellner, 154 Misc 2d 737, 743 [App Term, 1st Dept 1992], affd as mod 205 AD2d 339 [1st Dept 1994], affd 86 NY2d 582 [1995] [roaches]; Valoma v G-Way Mgt., LLC, 29 Misc 3d 1222[A], 2010 NY Slip Op 51943[U], *1 [Civ Ct, Kings County 2010] [bedbugs]; Assoc. v CW, 24 Misc 3d 1225[A], 2009 NY Slip Op {**65 Misc 3d at 317} 51617[U], *10 [Civ Ct, Bronx County 2009] [bedbugs]; Bender v Green, 24 Misc 3d 174, 181 [Civ Ct, NY County 2009] [bedbugs]; Ludlow Props., LLC at 518-519 [bedbugs]; JWD & Sons, Ltd. v Alexander, 33 Misc 3d 1217[A], 2011 NY Slip Op 51962[U], *2 [Ossining Just Ct 2011] [bedbugs]; Jefferson House Assoc., LLC v Boyle, 6 Misc 3d 1029[A], 2005 NY Slip Op 50225[U],*3 [Ossining Just Ct 2005] [bedbugs]; Alice M. Noble-Allgire, When the Bed Bugs Bite: Landlord and Tenant Responsibilities for a Reemerging Pest Problem, 33 ABA Prob & Prop 48 [Jan./Feb. 2019]).
Based on the above cases and applying those cases by analogy, this court finds that a flea infestation could cause a breach of the warranty of habitability and could lead to a constructive eviction of a tenant under the appropriate circumstances (see Gawad, 2012 NY Slip Op 51851[U],*1).
Bedbug- and insect-related cases also provide guidance as to appropriate remedies in the event of an infestation. For example, in a constructive eviction case, the Gawad court found[*8]"ample evidence introduced at the trial to establish the existence of a bedbug condition in the apartment, and that this condition rendered the apartment uninhabitable as of May 23, 2010 [when the tenants notified the landlord of the condition] and constructively evicted [the tenants] therefrom" (2012 NY Slip Op 51851[U], *2).[FN9] The Gawad court determined the tenants were entitled to the return of their security deposits and were not liable for rent beginning June 1, 2010, but could not recover for rent paid prior to that date, because "a landlord must be allowed a reasonable amount of time to correct a condition" (id.). The tenants also could not recover any other damages, including utility charges they incurred after May 23, 2010 (id.). As a result, the lower court's award of $1,986.78 and $2,234 to the respective tenants was reduced to $625 each (id.).
When there is a breach of the warranty of habitability by a residential landlord, whether or not there is a constructive eviction, the typical remedy is a rent abatement.
"[T]he proper measure of damages for breach of the warranty is the difference between the fair market value of the premises if they had been as warranted, as measured by the rent reserved under{**65 Misc 3d at 318} the lease, and the value of the premises during the period of the breach. The award may take the form of a sum of money awarded the tenant in a plenary action or a 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. at 329).
Damages are to be determined by weighing "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.). Expert testimony as to the amount of damages is not required (Real Property Law § 235-b [3] [a]), because "both sides will ordinarily be intimately familiar with the conditions of the premises both before and after the breach . . . [and] are competent to give their opinion as to the diminution in value occasioned by the breach" (Park W. Mgt. Corp. at 329-330; accord Solow v Wellner, 205 AD2d 339, 340 [1st Dept 1994], affd 86 NY2d 582 [1995]; Mateo v Anokwuru, 57 Misc 3d 61, 62 [App Term, 1st Dept 2017 per curiam]; Gramatan Realty Corp., 2018 NY Slip Op 50597[U], *2).
New York courts have addressed the issue of rent abatements for a breach of the warranty of habitability when there is a proven bedbug infestation. In Ludlow Props., LLC v Young (4 Misc 3d 515, 519 [Civ Ct, NY County 2004]), the petitioner landlord commenced a nonpayment proceeding against the respondent tenant; the tenant then asserted a breach of warranty of habitability defense but not a defense of constructive eviction. The evidence showed the tenant experienced hundreds of bedbug bite marks from June 2003 through December 2003 (id. at 516-517). The bedbugs greatly affected his sleep, and he used four different methods in an attempt to improve his sleeping experience he threw out his bed and slept on towels on the floor; he put plastic sheeting on the floor; he purchased an inflatable mattress; and, because the bedbugs kept biting, he ultimately turned to a metal cot with wire mesh covering (id.). He found bedbugs on his couch and disposed of the couch, an armoire, books, towels, clothes, and other such items (id. at 517). During the Christmas holiday in December 2003, he went to his family's home in Massachusetts and
"had to enter the family home through the basement, take off all his clothes and place them in a{**65 Misc 3d at 319} plastic bag and then seal the bag with duct tape. He then took a hot [*9]shower for a half hour and was required to wear his father's clothes all weekend to make sure he did not bring any of the nymphs into his parents' home" (id.).
The landlord hired an exterminator who established an "attack plan to combat the bedbugs" and who exterminated the premises on five occasions starting in June 2003 (id. at 518). Ultimately, the exterminator was successful, and the court noted "[t]here was no testimony that any bedbugs were seen or present after December 2003" (id. at 520). The court found that the bedbugs "did not constitute mere annoyance, but constituted an intolerable condition, notwithstanding the landlord's efforts to exterminate them" (id. at 519). Despite those conditions, however, the tenant did not vacate the premises, and the court did not find a constructive eviction but determined the tenant still used the premises for other purposes.
"Based upon the small size of the Premises, the severity of the bedbug infestation, the effect the infestation had on [the tenant], the lack of showing [the landlord's] efforts to eradicate the bedbugs on a building-wide scale, [the landlord's] diligent efforts to eradicate the bedbugs [in the apartment] and the use [the tenant] continued to make of the Premises," the court determined an appropriate abatement of the rent was 45% of the rent for each month commencing July 2003 through December 2003 (id. at 520).
The court did not award the tenant any damages due specifically to his having to throw out the couch, the armoire, books, towels, clothes, and other items. Because the tenant still owed rent after the abatement and had not made those rent payments, the court granted judgment to the landlord for the unpaid rent, reduced by the abatement, and a warrant of eviction (id.).
In Valoma v G-Way Mgt., LLC (29 Misc 3d 1222[A], 2010 NY Slip Op 51943[U] [Civ Ct, Kings County 2010]), the tenants moved into the apartment on February 1, 2010, and notified the landlord of a bedbug infestation on March 8, 2010. The landlord first had the apartment exterminated on March 13, 2010, but that attempt was unsuccessful. Despite three more treatments by that exterminator, and two treatments by a different exterminator, the bedbug infestation continued. The tenants thereafter moved out on April 12, 2010, and the tenants{**65 Misc 3d at 320} had to throw out most of their belongings, including furniture. The tenants sought the return of their security deposit and all of the rent for March and April as well as reimbursement for lost property (Valoma, 2010 NY Slip Op 51943[U], *1). The court found "that the bedbug infestation was so severe that it was beyond mere annoyance" and granted a return of the tenants' security deposit (Valoma, 2010 NY Slip Op 51943[U], *2). The court noted the landlord was "fairly prompt" in getting an exterminator to the premises within five days of the first complaint, acknowledged bedbugs may need more than a few attempts to be eradicated, and found the tenants still had some use of the apartment for the two months. Taking all that into account, the court granted a rent abatement of 50% per month and awarded half of the amount the tenants requested for lost property (id.).
Assoc. v CW (24 Misc 3d 1225[A], 2009 NY Slip Op 51617[U] [Civ Ct, Bronx County 2009]) is another case in which the court granted a 50% abatement of the rent. In Assoc., the tenant and her minor children endured a bedbug infestation that started in January 2007 and continued through at least November 2008. As the court noted, the landlord acted promptly and reasonably in attempting to have the bedbugs exterminated, but those "extermination efforts were consistently unsuccessful" and, during that time, the tenant and her children "suffered countless bites and rashes from bedbugs" (Assoc., 2009 NY Slip Op 51617[U], *11). Despite those facts, the court did not grant a full abatement but only a 50% abatement of the rent for that time period (id.).
In another case in which a landlord commenced a nonpayment proceeding against a tenant who asserted a breach of warranty of habitability defense for a bedbug infestation (JWD & Sons, Ltd. v Alexander, 33 Misc 3d 1217[A], 2011 NY Slip Op 51962[U], *2, *3 [Ossining Just Ct 2011]), the tenant "testified in graphic detail concerning how [the bedbug] condition made her home a wretched place to live for her family and her." The landlord did not dispute the tenant's testimony regarding the existence or extent of the infestation and found "by a preponderance of the evidence that the bedbug infestation of the Leasehold was" a breach of the warranty of habitability (id.). The evidence also showed the landlord started extermination efforts one month after discovering the infestation, and those efforts lasted at least two months (id.). The court noted that
{**65 Misc 3d at 321}"[i]n determining the amount of the abatement, the court may consider the severity of the adverse conditions of premises, the period of time during which those conditions existed, and their impact on the tenant's living habits as well as the effectiveness of the landlord's attempt to remedy them" and granted the tenant a 50% abatement of her share of the rent for 81 days during the period from July 22, 2010, to October 20, 2010 (id. at*3-4).
Even with the abatement, the court awarded judgment to the landlord for the tenant's nonpayment of the remaining rent as well as a warrant of eviction (JWD & Sons, Ltd., 2011 NY Slip Op 51962[U],*3).
The JWD & Sons, Ltd. opinion favorably cited Jefferson House Assoc., LLC v Boyle (6 Misc 3d 1029[A], 2005 NY Slip Op 50225[U] [Ossining Just Ct 2005]), a case arising out of the same court. In Jefferson House Assoc., LLC, the tenant experienced an ongoing bedbug infestation from April 2003 to October 2003 and thereafter, to a lesser extent, to January 31, 2005, along with a constant drip of sewage-smelling water (from Apr. 2003 to Nov. 2004) from her bathroom ceiling. The tenant, according to the court, not only had to endure the unpleasant odors from the dripping water but was "bitten by bedbugs nightly for at least six months and usually several nights per week thereafter for an additional fifteen months" (Jefferson House Assoc., LLC, 2005 NY Slip Op 50225[U], *3, *6). The court found a breach of the warranty of habitability and granted the tenant a total rent abatement of 50% for six months in 2003 and 20% for all the months thereafter through January 31, 2005.
A final case in which the tenants, in a nonpayment proceeding, asserted a breach of warranty of habitability defense due to bedbugs is Bender v Green (24 Misc 3d 174 [Civ Ct, NY County 2009]). In Bender, the tenants claimed there was a bedbug infestation in their apartment from approximately April 2005 through the end of 2007. They also claimed they suffered from hundreds of bedbug bites which caused swelling and welts on the back, legs, arms, and face (id. at 177-179). The landlord's exterminator treated the apartment for over a year but testified he never found any bedbugs in the apartment and never saw any bedbug infestation; the only bedbugs he saw were dead and contained in a ziplock bag from the tenants (there were 12 dead bedbugs) (id. at 180). Another exterminator hired by the landlord as an expert witness at trial inspected the{**65 Misc 3d at 322} apartment and did not find bedbugs but found unspecified droppings (id. at 180-181). The court found the evidence established "almost no evidence of the presence of bedbugs, let alone the extent of any 'infestation' apart from the testimony of the [tenants]," and noted a neighbor never saw a bedbug during 20 visits, the exterminator never saw any live bedbugs during many visits to the apartment, and if there were bedbugs in the apartment between September 2005 and January 2007, the only real evidence was the 12 dead bedbugs in the ziplock bag; as a result, the court found the tenants' testimony "was not reliable and not consistent with other evidence in the record" (id. at 182, 184). The court also noted that [*10]regardless of the source of the bedbugs,[FN10] the presence of bedbugs would breach the warranty of habitability (id. at 183). As a result, and despite the limited evidence of bedbug activity, the court assessed a rent abatement of 12% for the period of September 2005 through December 2006, granted the landlord judgment for the balance of the rent, and issued a warrant of eviction (id. at 185).
While a tenant may be entitled to a rent abatement if the landlord breaches the warranty of habitability, courts have emphatically stated that consequential damages, such as property damages, cannot be recovered for the breach. For example, in Joseph v Apartment Mgt. Assoc., LLC (30 Misc 3d 142[A], 2011 NY Slip Op 50303[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]), a tenant sued the landlord's managing agent to recover $5,000 for loss of personal property resulting from a bedbug infestation. After trial, the lower court awarded the tenant $3,342.83. On appeal, the Appellate Term noted that "in an action based upon a landlord's breach of the implied warranty of habitability, consequential damages, such as for property damage, are not recoverable" (Joseph, 2011 NY Slip Op 50303[U], *1 [citations omitted]; accord Couri v Westchester Country Club, 186 AD2d 712, 715 [2d Dept 1992]; Butter-Warnett v 782 E. 32nd LLC, 21 Misc 3d 143[A], 2008 NY Slip Op 52459[U], *1 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; 303 Beverly Group v Alster, 190 Misc 2d 69, 70-71 [App Term, 2d Dept 2001]; see Ludlow Props., LLC, 4 Misc 3d at 520{**65 Misc 3d at 323} [the court granted a 45% rent abatement for bedbugs but did not award the tenant any specific damages due to his having to throw out the couch, the armoire, books, towels, clothes, and other items]). The Joseph case also considered Multiple Dwelling Law § 80 (1)[FN11] and found
"a determination that defendant breached the duty set forth in the statute is not in accordance with the principles of substantial justice [required under New York City Civil Court Act § 1807] as there was insufficient proof to establish that [the landlord] had failed to act with reasonable diligence upon being advised by [the tenant] of the bedbug infestation in his apartment" (Joseph, 2011 NY Slip Op 50303[U], *1 [citations omitted]).
The court, in the instant small claims action, must "do substantial justice between the parties" (Uniform City Ct Act § 1804). In doing so, the court must consider the parties' testimony and the evidence as a whole, especially in a case such as this where the two parties diverge in their interpretation of what occurred at the property. The defendants, for example, claimed there was an intolerable flea infestation, yet the claimants testified in all the years they have owned the property they never had any flea issues and didn't observe any during or after the defendants' occupancy; the claimants' testimony was verified and validated by the report of the exterminator. In weighing "the severity of the violation and duration of the conditions giving rise to the [alleged] breach as well as the effectiveness of steps taken by the landlord to abate those [alleged] conditions" (Park W. Mgt. Corp. at 329), the court is mindful of the [*11]following significant facts:
1. the claimants immediately responded to the defendants' complaints of fleas by hiring an exterminator, who went to the property within two days;
2. the exterminator treated for fleas on the first visit, even though the exterminator found no evidence of flea infestation and even though the claimants credibly testified they never observed any evidence of fleas on the property prior to, during, and after the defendants' occupancy of the property;{**65 Misc 3d at 324}
3. based solely on the defendants' allegations of a flea infestation, despite the exterminator not finding evidence of fleas and despite the claimants never having observed fleas on the property or received complaints of fleas prior to the defendants' occupancy, the claimants voluntarily reduced the February rent from $1,450 to $730 (essentially 50%) to mollify the defendants' concerns;
4. the exterminator returned twice more to the property during the defendants' occupancy and still found no evidence of fleas but did place glueboard traps;
5. the defendants claim the glueboard traps did catch fleas, but the defendants never provided those glueboard traps to the claimants or the exterminator, despite the exterminator's request, and as a result the defendants did not act in good faith in withholding the traps;
6. Webers produced pictures showing what she claimed to be two fleas on the bathroom sink and less than 10 fleas on glueboard traps. She also produced pictures showing bites on her feet and claimed those were flea bites (and admitted her doctor did not corroborate Webers' conclusion), but the pictures (from Mar.) showed no new bites after the January pictures and, in fact, showed the bites were healing between January and March;[FN12]
7. Both Coley and Felice testified Warf stated there were no fleas, and the exterminator's report noted that "on 3rd visit the male tenant told me he has never seen any activity but that his girlfriend said she had bites from fleas"; Webers disputed that claim, but Warf (the male tenant) did not testify;
8. when the defendants moved out, the claimants placed glueboard traps on the property and found no evidence of any fleas on those traps; and
9. when the exterminator returned to the property shortly after the defendants moved out, the exterminator noted, again, no evidence of flea activity on the property.
The court must consider the above facts in light of the standards enunciated by Park W. Mgt. Corp., Bender, Joseph, and{**65 Misc 3d at 325} the other discussed cases. In doing so, it is apparent that the claimants took more than reasonable and prompt steps to address the claimed infestation by immediately hiring an exterminator, the claimants voluntarily gave the defendants a 50% rent abatement for February, the defendants did not fully cooperate in good faith with the exterminator's treatment plan, and, if there were fleas on the property, the fleas were eradicated in a reasonable time period (in fact, less than two months). Under similar facts, the Bender case [*12]found the mere (very limited) presence of bedbugs would breach the warranty of habitability, and this court will follow the guidance of Bender and find the (very limited) presence of fleas on the property could be construed as a breach of the warranty.
The Bender court granted a 12% abatement of the rent for a limited portion of the tenants' occupancy. Other cases have awarded abatements of up to 50% of the rent, and generally nothing else, as a result of bedbug infestations that were much more severe than anything alleged by the defendants. Accordingly, following Bender, and despite the lack of evidence of a flea "infestation," the court determines that, at most, the defendants would be entitled to a 12% abatement of the rent due to fleas, but only for the period from January 23, 2019 (when the defendants first reported the allegation to the claimants), to March 6, 2019 (when the defendants moved out).[FN13] Since one month's rent was $1,450 and the abatement period was approximately 1
As noted in the cases discussed earlier in this decision, in particular the Joseph case, "in an action based upon a landlord's breach of the implied warranty of habitability, consequential damages, such as for property damage, are not recoverable" (2011 NY Slip Op 50303[U], *1). The defendants submitted a counterclaim seeking consequential damages due to the alleged flea infestation and the alleged breach of the implied warranty of habitability. Since those damages are not{**65 Misc 3d at 326} allowed in this type of case, the defendants are not entitled to any damages on their counterclaim.
The claimants acted in good faith and more than satisfied their obligations as required by Park W. Mgt. Corp. and other cases. As a result, the court finds the defendants were not constructively evicted by the claimants but vacated the property without the legal right to do so and without paying the rent remaining under the term of the lease.
3. Are the claimants entitled to damages due to the defendants' early termination of the lease?
The defendants paid the claimants one half of the January rent, because the defendants moved into the property in the middle of January. The defendants also paid the claimants $730 for February; because of the defendants' complaints about the fleas and as an accommodation, but not because the claimants observed any flea activity, the claimants voluntarily reduced the February rent from $1,450 to $730. The defendants, however, failed to pay the rent for March, April, and May 2019, and the claimants, in a text dated March 14, 2019, to the defendants (defendants' exhibit F, in evidence), demanded the rents due under the lease. The unpaid rent totals $4,350.
Real Property Law § 227-e requires a landlord to mitigate damages if a tenant vacates residential property in violation of a lease. That section, however, applies to proceedings [*13]commenced on or after June 14, 2019;[FN14] the claimants commenced this action prior to June 14, 2019. The law was clear prior to the adoption and effective date of Real Property Law § 227-e: a residential landlord had no duty to mitigate damages caused by a tenant's breach (Rios v Carrillo, 53 AD3d 111, 113, 114 [2d Dept 2008] ["we are constrained to follow what we perceive to be established precedent that a residential landlord is under no duty to mitigate damages where the terms of the lease do not indicate otherwise"]). There was no proof the claimants attempted to mitigate their damages after the defendants breached the lease, but neither the law in place at the time of the defendants' breach nor the lease required the claimants to do so. The claimants, therefore, are entitled to recover $4,350 from the defendants. Because the claimants still are in possession of the defendants' security deposit in the amount of $1,450, the security deposit can be applied against the $4,350 owed by{**65 Misc 3d at 327} the defendants, leaving a net owed to the claimants in the amount of $2,900.
After hearing the testimony at the trial and reviewing all documentary evidence produced by the parties, it is ordered that the defendants owe the sum of $4,350 to the claimants, and the claimants can apply the security deposit of $1,450 against that amount, and it is further ordered that the defendants' counterclaim is dismissed, and it is further ordered that judgment shall issue for the claimants in the amount of $2,900 ($4,350 less the security deposit of $1,450), plus costs.