Plaintiff/Respondent (hereinafter referred to as plaintiff) commenced the above-referenced Small Claims action against defendant/petitioner (hereinafter referred to as defendant) for $840 seeking the return of her $800 first month's rent payment and reimbursement of her $40 U-Haul truck cost upon the ground that defendant breached the parties' lease agreement and based upon defendant's failure to obtain a Residential Occupancy Permit (ROP) prior to renting the subject apartment to her, as is required by Article IX of the Albany City Code. The above-referenced cases both involve residential premises located at 52 Watervliet Avenue, Unit No. 5. Plaintiff alleged that she found the subject apartment in a condition that was not suitable to live [*2]when she and her family arrived, unpacked their personal belongings from the U-Haul truck she had rented, and moved the belongings into the subject premises. Defendant denied this allegation, asserting the defense that the apartment was in a proper condition to be rented, and she filed a counterclaim seeking rent monies for the months plaintiff had her personal belongings at the premises.

Approximately three months after plaintiff sued defendant in this Small Claims action, defendant commenced the subject summary proceeding against plaintiff on April 8, 2019 for non-payment of rent. In defendant's Petition in that proceeding, defendant sought $800 a month in rent for the four month period of January through April 2019, for a total back rent claim of $3,200.

At first appearance for the subject Small Claims case on February 21, 2019, plaintiff informed the Court that she still had personal belongings left at the subject premises at that present time. I directed that plaintiff should clear out her personal belongings as soon as possible so as to avoid being subject to potential money damages as defendant had stated in court that she would be filing a counterclaim against plaintiff in this Small Claims case to recover rent for the months plaintiff had her belongings at the subject premises. In court the parties were given March 26, 2019 as the original Small Claims trial date, but the trial was adjourned to April 12, 2019 upon defendant's written request for an adjournment and based upon good cause shown. The trial was conducted over the course of two separate days, April 12, 2019 and May 10, 2019, and after trial the Court reserved decision.

On the first day of the subject Small Claims trial on April 12, 2019, plaintiff made the Court and defendant aware of plaintiff's intention not to appear in court on April 18, 2019 (the first appearance date in the subject summary proceeding) as she was not challenging defendant's right to repossess the subject premises. Plaintiff did not appear at that April 18, 2019 first appearance and, on a default basis, defendant was issued a Warrant of Eviction effective immediately. With respect to defendant's money claim in the subject summary proceeding for four months of back rent, the Court reserved decision pending the outcome of the subject Small Claims trial because defendant's back rent claim pertained to the exact same money claim raised in defendant's Small Claims counterclaim, which was to be addressed and decided by the Court after the subject trial was concluded. The Court now makes the following findings of fact and decision of law.

At trial, defendant testified that she is the owner of the subject premises. Defendant called as a witness her mother Mahadaye Khan (a/k/a Mala Khan). Mala Khan is the person who entered into the subject lease agreement with plaintiff and plaintiff's fiancé B'Jon Gilmore, and she is listed as the "Landlord/Lessor" in the lease (Lease Agreement, Defendant's Exh B). The date of January 8, 2019 was written next to the signature lines of the lease, and the lease contained language indicating that plaintiff received the keys to the premises on the date that the parties signed the lease. During the course of the trial, the evidence established that plaintiff had not received the keys until January 9, 2019.

It is undisputed that plaintiff paid $800 to Mala Khan as first month's rent for the subject premises, and plaintiff received a receipt dated January 8, 2019 for said payment (Plaintiff's Exh 2, at 2A). At first appearance and also on the first day of trial for the subject Small Claims case, defendant provided the Court with a copy of the ROP for the subject premises, which was issued [*3]to defendant and became effective as of January 16, 2019 (Defendant's Exh A). The Court notes that the legal provisions setting forth the ROP requirements applicable in the City of Albany are contained in Article IX of the Albany City Code. With respect to the inspection and certification requirements of a ROP, Section 231-130(A)(3) of Article IX specifically provides that "it shall be unlawful and a violation of this chapter to rent, lease or otherwise allow the occupancy of any residential rental dwelling unit without the inspection and certification as required herein."

At trial, plaintiff testified that when she and Mr. Gilmore signed the subject lease, Mala Khan told them that there was a valid ROP for the subject premises. It is undisputed that plaintiff did not pay defendant a security deposit when renting the subject apartment, however, included as a handwritten provision in the subject lease was the agreement that plaintiff had applied to have the deposit paid for by the Albany County Department of Social Services and, if such assistance did not come through, plaintiff would make payments to defendant over a period of time until the full amount of the security deposit was paid. According to plaintiff, when she and Mr. Gilmore arrived at the subject apartment on January 9, 2019, she observed that the refrigerator was not working, there was black mold and cracked tiles in the shower, "paint chips everywhere", and holes in the wall of the bedroom that was to be used as a nursery for their baby. Plaintiff testified that she and Mr. Gilmore had been at the subject apartment about two weeks earlier and were told by Mala Khan that these issues would be fixed before they moved in.

Plaintiff testified that Mala Khan was "furious" when she and Mr. Gilmore showed up at the subject premises while Mala Khan was present and the Code Enforcement Officer was conducting the ROP inspection. According to plaintiff, the date of that inspection was January 11, 2019 and that during the inspection the Code Enforcement Officer cited defendant for code violations, including the requirement to fix "the huge hole in the bathroom" that was causing the mold in the shower and to repair the hole in the bedroom wall as well as other violations. Plaintiff testified that while in the presence of the Code Enforcement Officer Mala Khan promised to get a new refrigerator for the subject premises. Plaintiff also testified that on that day, after leaving the apartment and while they were outside, plaintiff asked Mala Khan for her office phone number to contact her to resolve the apartment issues, at which time Mala Khan slammed her car door shut and drove off angrily without giving plaintiff a complete phone number. Plaintiff testified that she and Mr. Gilmore had videotaped this incident, but they were not able to get the video on to a disc and have a laptop computer brought to court in order to show the footage at trial. Plaintiff also testified that although she had requested the Albany City Department of Buildings and Regulatory Compliance (the "Department") to provide her with a copy of the Notice of Violation the Department issued regarding the January 11, 2019 ROP inspection of the subject premises, she was not able to get it.

According to plaintiff, she and Mr. Gilmore left behind at the subject premises items such as a TV, couches, and a mattress and bed frame, but they took their clothing and other basic items they needed in order to "survive". Plaintiff testified that they left these big items at the subject premises because they did not have any funds to pay to transport them and pay for storage and that they never stayed at the apartment, but lived at the homes of family and friends and slept on an air mattress.

Plaintiff introduced photographs at trial (Plaintiff's Exhibit 2) to show the deplorable condition of the subject apartment, including the following: items left behind by a prior tenant, [*4]which included a dining room table (Exh 2M) and an air conditioner (Exh 2N); carpet stains (Exhs 2E & 2F), the shower area covered with black mold and soap scum and having cracked tiles (Exhs 2H & 2R); filthy bathroom sink (Exhs 2J & 2X); paint chips from behind the front door (Exh 2K & 2O); and dirty kitchen sink (Exh 2Q), refrigerator (Exhs 2S & 2T), and stove (Exhs 2W & 2Z). Plaintiff also submitted into evidence a January 18, 2019 letter from the Albany County Health Department which set forth the results of the lead paint testing performed at the subject apartment, stating that "lead hazards" were identified and "must be repaired" in various listed interior and exterior areas of the apartment (Plaintiff's Exh 3).

Finally, plaintiff testified that when she and Mr. Gilmore were at the subject premises on April 11, 2019, the day before the first day of trial, the refrigerator was still not working and the dining room table and air conditioner were still there.

At trial on April 12, 2019 when Mala Khan began her direct examination, she testified that the reason she did not refund plaintiff's $800 is because plaintiff had already moved her belongings into the subject premises. Mala Khan testified that the "refrigerator was working on the day of the inspection" conducted by a Code Enforcement Officer, that the date of that ROP inspection was January 9, 2019, and that she was present at the premises on that day and saw that the refrigerator was working. In support of her testimony about the date of the ROP inspection, Mala Khan pointed out the handwritten date on the invoice she received after paying the ROP inspection fee which stated "Wed 1-9-19, 2pm - 3pm" (Defendant's Exh D). This was the sole documentary evidence Mala Khan presented at trial which was relied upon by defendant to establish that the Code Enforcement Officer was present at the subject premises to conduct the ROP inspection on the same date of January 9, 2019 when plaintiff had moved her belongings into the premises.

Mala Khan testified that she hired a contractor (whose first name was Scott) to do cleaning of "the sink and the bathroom" and to replace the carpet at the subject premises and that the contractor was also present when the Code Enforcement Officer was there on January 9, 2019. The photographs of the sink and shower area submitted by defendant at trial showed a carpeted area, a very clean sink and shower, and what looked to be replacement tiles in the shower area (Defendant's Exh E). The photographs showed the name "Scott S- Contractor", and they were dated January 13, 2019.

Mala Khan testified that the carpet replacement work was not completed on January 9, 2019, but that every effort was made to get the apartment ready for plaintiff to move in. Mala Khan testified that the original date plaintiff was supposed to move in was January 15, 2019, but that plaintiff sent her a text message on January 9, 2019 stating that she needed to move out of Mr. Gilmore's father's home they were living in by 2:30 pm on that day. During the second day of trial on May 10, 2019 when Mala Khan's direct examination continued, she put into evidence as Exhibit F printed out text messages that were sent between her and plaintiff from January 8 through January 10 of 2019.

The evidence at trial was not consistent with Mala Khan's testimony that January 15, 2019 was the original agreed upon move in date. In fact, the day before the above referenced January 9, 2019 text message was sent by plaintiff, the subject lease had been signed on January 8, 2019 and a handwritten term of the lease agreement states: "Full $800 rent is due for Jan 8 - Jan 31st - in return for not having security deposit up front" (Defendant's Exh B, at p.2). The [*5]Court views the lease as evidence that Mala Khan knew of plaintiff's interest to move into the subject premises as early as January 8, 2019. The undisputed testimony and the text messages submitted at trial established that on January 8, 2019, when Mala Khan did not accept an employment check Mr. Gilmore had offered to sign over to her as payment for first month's rent, Mala Khan instead agreed to meet plaintiff and Mr. Gilmore the next day on January 9, 2019 to receive $800 in cash from plaintiff for first month's rent and to give plaintiff the keys to the subject apartment upon such payment being made (Defendant's Exh F, at F5-F9). Clearly defendant was legally obligated to have the subject apartment in a condition that was ready for plaintiff to move into on January 8, 2019 and, as the owner of the subject premises, she was legally required to have a ROP in effect by that date and to have had the subject code violations corrected before plaintiff and Mr. Gilmore moved in.

The following text messages clearly show that on January 9, 2019 plaintiff and Mr. Gilmore were not in the subject apartment between 2 and 3 pm, which is the date and time Mala Khan testified the Code Enforcement Officer was present at the premises to do the ROP inspection and when, according to Mala Khan's testimony, plaintiff, Mr. Gilmore, and the contractor Scott were present all at the same time. The text messages demonstrate that plaintiff did not receive the keys to the subject apartment until after 5:00 pm on January 9, 2019. On January 9, 2019, at 11:34 am, plaintiff texted Mala Khan, stating: "Just want to keep you in the loop. We have to be out of his dads by 2:30 for the new owners to start moving in. I have the money in cash for you but w [sic] need to get our stuff out and loaded into a uhaul. We will call you as soon as our things are loaded in the truck to meet for the keys." (Defendant's Exh F, at F7). Then at 12:47 pm on January 9, 2019, plaintiff texted: "Hi are you available at 4:30? We have the $800 cash.", and then the next text message later that afternoon at 3:21 pm was Mala Khan's reply text stating: "Yes" (id. at F8). At 4:34 pm on January 9, 2019, plaintiff texted Mala Khan to tell her: "I'm sorry you didn't respond so we continued to pack and I didn't have my phone on me", and at 4:59 pm plaintiff stated: "We can come meet you right now. It would take me about 15 minutes but let me know so I can head over there" (id.). Finally, at 5:01 pm on January 9, 2019, Mala Khan sent this message: "Ok at office at 5:30. Text when you get here", followed by plaintiff sending a text message at 5:26 pm: "We're here. Outside", and Mala Khan texting back "K" at 5:27 pm on January 9, 2019.

After meeting Mala Khan at her office at approximately 5:30 PM on January 9, 2019 to pay the $800 and to receive the keys for the subject premises, as is evidenced by the above referenced text messages, plaintiff texted Mala Khan at 7:48 pm asking her: "Can you give me a call please" (id. at F9). The text messages that were sent immediately after plaintiff asked Mala Khan to call her are set forth below and, in plaintiff's own words, describe the unacceptable condition of the subject apartment on January 9, 2019. In direct contradiction to Mala Khan's and defendant's testimony, the text messages sent between plaintiff and Mala Khan on January 9, 2019, beginning at 9:17 am through to 8:14 pm, clearly establishes that the ROP Inspection was not conducted on January 9, 2019 and that Mala Khan, the contractor Scott, and significantly the Code Enforcement Officer were never present at the premises on that day between 2 and 3 pm or at any time on January 9, 2019.

Plaintiff's text message sent on January 9, 2019 at 8:10 pm:

"Good evening. Upon arrival I found that this apartment is no where near acceptable for a 5 month old to reside. The amount of filth and debris is unfathomable and I am appalled that you would give us the keys with the condition that the apartment is in. There are several things that need immediate detailed attention to before settling in. If these matters aren't immediately attended to, I find in uninhabitable not only for a 5 month old but not for adults as well. If you're unable to rectify the differences, I regret to inform you we request a refund as soon as possible. Our understanding was that this apartment was to be cleaned out before we arrived. We have pictures and videos of the state of which the apartment is in" (id. at F9-F11).

Plaintiff's text message sent on January 9, 2019 at 8:14 pm:

"Furthermore you allowed us to sign paperwork knowing the apartment was not cleaned nor move in ready. We understand it was short notice but following the showing, you said there would be a full clean up. Nothing has been cleaned nor wiped down. There are stains everywhere (carpet, counters, etc.) the toilet has not even been cleaned, there is debris left in the bathroom" (id. at F12).

Mala Khan's text message sent on January 10, 2019 at 8:38 am:

"Good Morning. Sorry but will not be available until noon today but will give you a $50 credit for any extra cleaning you may have to do" (id. at F13).

Plaintiff's text message sent on January 10, 2019 at 12:35 pm:

"Honestly after seeing the condition of the apartment and the refrigerator doesn't even work..this apartment isn't suitable for our newborn. We would just like the $800 back and we can part ways. I just left United tenants and they said there's no ROP on there and there shouldn't be any issue with me getting my money back. They've now seen the photos and the videos. I do not want any issues we just would like a refund" (id. at F14)

Plaintiff's text message sent on January 10, 2019 at 12:53 pm:

"I'm sorry but my son's safety and health is my number one priority. We weren't even able to spend the night there yesterday due to us not wanting him around the dirt and debris" (id. at F15).

At trial, Mr. Gilmore testified that he saw the subject premises before he and plaintiff signed the lease, that they were told by Mala Khan that the cleaning issues and non working refrigerator would be taken care of before they moved in, that Mala Khan told them the apartment had a ROP, and that the ROP inspection did not take place on January 9, 2019 when they first got the keys and moved their belongings into the apartment, but was conducted a couple days later. According to Mr. Gilmore, no contractor was present doing carpet work on January [*6]11, 2019 when the Code Enforcement Officer was there conducting the ROP inspection. He testified that Mala Khan acknowledged that the refrigerator was not working when she and the Code Enforcement Officer were at the subject premises on January 11, 2019 while he and plaintiff were present to observe the inspection. Mr. Gilmore also testified that a dining room table, end table, air conditioner, microwave, and "some knick knacks" were items that had been left behind at the subject premises by a prior tenant and that those items were offered for sale to him and plaintiff by Mala Khan, but that the asking price was too high so they rejected the offer. According to Mr. Gilmore, they had "sunk their money" into the apartment and, when they had to leave the apartment because it was not suitable to live there, they had no money to pay for the costs of transporting the remainder of the belongings they left behind. He testified that they could not afford to move their large items, such as the mattress, a couch, a love seat, and boxes, after spending $800 for first month's rent and paying for a U-Haul truck to move into the apartment on January 9, 2019.

One of the questions the Court asked of Mr. Gilmore during his witness examination was did he think there should be some type of payment owed by a tenant to a landlord when a tenant leaves behind personal belongings in an apartment. His response was "under normal circumstances, honestly, yes", but he testified not in this case where there was a "blatant ignoring" of phone calls and text messages when he and plaintiff were trying to repeatedly contact Mala Khan to arrange for a refund of their money so they could pay for the cost of removing their belongings from the subject apartment. Mr. Gilmore testified that they needed the money to transport their larger items and that if the $800 had been returned to them they would have moved their stuff out that very same day within a few hours after receiving the money.

In her closing remarks, plaintiff emphatically stated that on the day they first moved into the premises they wanted to stay and live there if the situation could have worked out. However, with a non working refrigerator and the filth and other issues needing to be fixed in the apartment and not having those issues resolved, they reached out to Mala Khan asking for their money back so they could move out right away. Plaintiff argued that she and Mr. Gilmore thought there was a valid ROP in place because at the lease signing Mala Khan told them there was one, and when they found out on January 10, 2019 from the United Tenants Association that there was no ROP plaintiff believed she was entitled to get the $800 first month's rent payment refunded to them.

Defendant Shereen Khan stated in her closing remarks that the code inspection of the apartment was done, and when plaintiff complained that the apartment was not clean to her liking she was offered money back as a refund ($50 credit per Mala Khan's January 10, 2019 text message, Exh F13), but plaintiff refused. Defendant argued that "it was obvious" plaintiff changed her mind about living in the apartment, and then she took advantage of the situation by storing her belongings there.

Section 1804 of the Uniform City Court Act sets forth the procedure to be followed when conducting a Small Claims trial. The Court is required "to do substantial justice between the parties according to the rules of substantive law..." U.C.C.A. § 1804; see also, Blair v. Five Points Shopping Plaza, Inc., 51 AD2d 167 (3d Dept 1976). Pursuant to Real Property Law § 223-a (Remedies of lessee when possession is not delivered), "there shall be implied in every [*7]lease of real property a condition that the lessor will deliver possession at the beginning of the term. In the event of breach of such implied condition the lessee shall have the right to rescind the lease and to recover the consideration paid."

As a matter of law, defendant as the owner of the subject premises and Mala Khan as the landlord did not have clean hands in renting an apartment to plaintiff without having a ROP in place, which is in violation of law. Additionally, while the apartment was delivered to plaintiff when plaintiff received the keys and moved her belongings into the premises, plaintiff properly demanded a refund of her $800 January rent money and was entitled to that refund based on defendant's breach of the subject lease agreement.

Based upon applicable legal standards and an exhaustive review of the trial testimony of the parties and their witnesses and of the documentary evidence presented at trial, the Court finds that:

(1) At the time of the lease signing, Mala Khan falsely told plaintiff and Mr. Gilmore that there was a ROP for the subject premises;

(2) Defendant allowed the subject apartment to be rented to plaintiff when there was no ROP, and furniture and other items of personal property were left behind in the apartment which belonged to a prior tenant;

(3) Plaintiff's testimony was credible that the refrigerator was not operating correctly when she moved into the subject premises on January 9, 2019. Additionally, the photographs plaintiff took of the premises (Plaintiff's Exh 2) and plaintiff's and Mr. Gilmore's testimony demonstrated that there was excessive filth in the bathroom and mold and cracked tiles in the shower area, that the kitchen area was dirty, including the sink, stove and refrigerator, and that other areas of the apartment were unclean and in disarray when plaintiff moved in. The subject apartment was therefore not delivered in a condition that was ready to be rented at the beginning of the term of the lease, which commenced on January 8, 2019;

(4) The evidence defendant presented through her witness Mala Khan regarding the date of the ROP inspection is rejected by the Court. The handwritten notation on the invoice for the subject ROP inspection fee (Defendant's Exh D) does not establish that the subject property was inspected on January 9, 2019 between 2 and 3 pm. To the contrary, the text messages received into evidence at trial contradicts Mala Khan's testimony, and the Court credits plaintiff's testimony that January 11, 2019 was the date the Code Enforcement Officer was present at the subject premises conducting the ROP inspection;

(5) The evidence establishes that defendant's contractor Scott was not present on January 9, 2019 doing carpet work when plaintiff and Mr. Gilmore moved into the premises on that day, the contractor performed no work to get the subject apartment in a livable condition prior to plaintiff and Mr. Gilmore moving in on January 9, 2019, and the bathroom and carpeting work the contractor did do on January 13, 2019 to correct the subject code violations defendant was cited for on January 11, 2019 was done for the purpose of defendant obtaining a ROP; and

(6) On April 11, 2019, plaintiff and Mr. Gilmore removed all of their remaining personal property from the subject premises.

It was unlawful for defendant to have rented the subject premises without a ROP and, accordingly, the Court finds that the subject lease is null and void. In addition to the lack of a ROP ground, plaintiff's basis for seeking an immediate refund of her first month's rent payment [*8]was the deplorable condition in which the subject apartment was delivered to her. The fact that plaintiff left behind her personal property at the subject premises after the lease was breached, however, exposed plaintiff to liability for money damages. In applying the fair use and occupancy standard to determine what money compensation defendant is entitled to for plaintiff's storage use of the premises, the Court has determined that one quarter of the $800 monthly rental amount ($200) is the proper measure of damages for each of the four months (January-April 2019) plaintiff's personal property was left at the premises.

Accordingly, plaintiff's claim for the reimbursement of her $800 first month's rent payment is hereby denied. Defendant is entitled to $800 for plaintiff's storage use of the subject premises from the period of January 9, 2019 through to April 11, 2019 based on the Court's fair use and occupancy assessment set forth above (4 months x $200). Accordingly, the $800 plaintiff paid for first month's rent will be applied as an offset against the $800 defendant is hereby granted pursuant to her Small Claims counterclaim, which results in no judgment to be awarded to defendant. Defendant's money claim in the subject summary proceeding for $3,200 for four months of back rent is hereby denied as the only money plaintiff owed defendant was for the storage usage of the subject premises, not rent.

Plaintiff's claim for the reimbursement of her $40 U-Haul truck rental cost is hereby granted as plaintiff would never have arranged to transport her personal property and incurred that cost had she known that the subject apartment was not ready to be moved into on January 9, 2019. The court filing fee of $15 is also awarded to plaintiff.

SO ORDERED.

A Small Claims Judgment in favor of plaintiff for a total of $55 is hereby issued and enclosed with this Decision and Order.