City Court of Middletown, July 15, 2022

Eugene Grillo for petitioners.

Andreniki Backus, respondent pro se.

This is a nonpayment summary proceeding to recover possession of real property located at 95 Monhagen Avenue, Apt. 1, Middletown, New York 10940 (the property). The proceeding is brought by Jin K. Choi and Sang Sun Choi (the petitioners) against Andreniki Backus (the respondent), "John Doe," and "Jane Doe." The petitioners filed a notice of petition and petition with the court on February 14, 2022, alleging the respondent owed rent in the amount of $5,600 from September 1, 2021, through February 2022. The parties appeared in court on a number of occasions, and this matter ultimately was scheduled for trial on May 17, 2022. Prior to trial, the petitioners, through their attorney, moved to amend the petition to add rent due for March through May 2022 at $1,100 per month, making a total of $8,900 as and for alleged unpaid rent, and the court granted that motion.{**76 Misc 3d at 855}

The court conducted a nonjury trial on May 17, 2022. At the trial, Jin K. Choi (Choi), one of the petitioners, testified, as did the respondent. Both witnesses submitted documentary evidence for the court's consideration. After trial, the court reserved decision.

The credible and relevant evidence at the trial showed the following:

The petitioners and the respondent entered into a written month to month lease agreement dated March 12, 2019 (the agreement) (petitioners' exhibit 1, in evidence) at an initial monthly rental of $1,000, which was increased to $1,100 per month commencing April 2020. The Department of Social Services (DSS) paid most of the monthly rent, but the respondent still had to pay a portion of the rent. [*2]

Although the petition (as amended) claims the respondent owed $100 from September 2021 and $1,100 for each month from October 2021 through May 2022 for a total amount due of $8,900, Choi testified DSS was paying $1,000 per month toward the respondent's rent through January 2022 and stopped paying anything toward the rent starting February 2022. Choi also testified the respondent owed $220 per month from June 2019 through September 2019, $100 per month from April 2020 through September 2020, and $100 per month from November 2020 through January 2022, totaling $2,980^[FN*] and owed rent of $1,100 per month from February 2022 through May 2022, totaling $4,400. Choi's testimony thus claims the respondent owes rent in the total amount of $7,380 through May 2022, not $8,900 as claimed in the amended petition. However, a DSS form Choi signed on April 21, 2022, for shelter verification and expenses on behalf of the respondent states (in answer to the question as to whether the rent is paid up to date) that the last month the rent was paid in full was August 2021. (The DSS form was accepted into evidence as respondent's exhibit E.) Based on Choi's representation in the DSS form that the last month the rent was paid in full was August 2021, and based on Choi's testimony the monthly rent was $1,100 and DSS was paying $1,000 each month through January 2022, the petitioners{**76 Misc 3d at 856} legitimately can only claim the respondent owes $100 per month from September 2021 through January 2022 and $1,100 per month from February 2022 through May 2022, for a total of $4,900.

The respondent submitted an answer to the petition (respondent's exhibit B, in evidence) and, during her testimony, acknowledged she did not pay the rent at $1,100 per month for February 2022 through May 2022 for a total of $4,400. However, her answer indicated that repairs were needed in her apartment, and she testified she had many complaints about the condition of the apartment that were not promptly addressed by the petitioners. For example, she complained to the petitioners that the front and bathroom doors had holes; the refrigerator wouldn't stay closed or keep food cold enough; only two of the pilot lights on the stove worked; the bathroom door needed a new frame; there were water leaks in the apartment; and, perhaps most significantly, the apartment was infested with roaches (for example, in the refrigerator, in the cabinets, in the bathroom door, and in the stove) (respondent's exhibits C, D, in evidence). Some of those conditions existed when the respondent moved in, such as holes and split wood in the doors and broken cabinets, and the petitioners did work to correct some of the conditions. The respondent also testified roaches were in the apartment when she and her children moved in. According to the respondent, the petitioners have tried to have the roaches treated, but the roach condition never has been resolved and, in fact, has gotten worse.

Choi testified he has had the entire building in which the property is located treated for roaches once a month since September 2018 (which is before the respondent moved into the property). The building contains eight apartments and three stores. Choi testified he pays $135.16 each month to a pest control service to treat the roaches in the entire building.

There was no proof the respondent and her family caused any damage to the property, and there was no proof the respondent and her family brought the roaches into the building. The respondent testified she and her family had nowhere else to move to, and the respondent [*3]and her family are still residing at the property.

The credible evidence shows that the respondent owes a total of $4,900 in rent from September 2021 through May 2022, after{**76 Misc 3d at 857} accounting for payments of $1,000 from DSS through January 2022, hearing Choi's testimony about what is owed, and reviewing Choi's statement in respondent's exhibit E as to when the rent was last paid in full (Aug. 2021). The credible evidence also shows there are a number of problems with the condition of the property, although some of the structural conditions of the property about which the respondent complained existed when the respondent and her family moved in. The credible evidence also shows the petitioners fixed some of the issues, such as the front and bathroom doors and the stove pilot lights. The credible evidence further shows, however, that the roach condition not only existed before the respondent and her family moved into the property, but it has gotten worse over time. The petitioners may have attempted to resolve the roach problem by paying $135.16 each month to a pest control company for the entire building in which the property is located (which contains eight apartments and three stores), but whatever the pest control company has done and is doing is not enough. The pictures taken by the respondent (respondent's exhibit D, in evidence) clearly show a roach infestation throughout the property.

[1] 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

"[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{**76 Misc 3d at 858} or detrimental to their life, health or safety."

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 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] [the Solow Court noted, however, that in Park W. Mgt. Corp. "(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' "]).

The presence of roaches or other insects in a rental property could be considered a breach of the warranty of habitability (see e.g. Gawad v Aviad, 37 Misc 3d 126[A], 2012 NY Slip Op [*4]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]). 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.). Even if there is an insect infestation, "a landlord must be allowed a reasonable amount of time to correct [such] a condition" (Gawad, 2012 NY Slip Op 51851[U], *1). If there is an insect infestation, however, such as from roaches, " 'in the eyes of a reasonable person . . . , a breach of the implied warrant of habitability has occurred' " (Felice v Warf, 65 Misc 3d 305, 315 [Middletown City Ct 2019], citing Park W. Mgt. Corp. at 328;{**76 Misc 3d at 859} accord Kardias v Caballero, 70 Misc 3d 1220[A], 2020 NY Slip Op 51604[U], *3 [East Fishkill Just Ct 2020]).

In this case, the continued—and increased—presence of roaches, and what appear to be relatively limited attempts by the petitioners to correct the roach infestation in the property and throughout the building, lead to the conclusion that the petitioners have breached the implied warranty of habitability owed to the respondent.

[2] When there is a breach of the warranty of habitability by a residential landlord, the typical remedy is a rent abatement (Park W. Mgt. Corp. at 329).

"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" (id.).

The amount of a rent abatement, if any, is 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. v Morrell, 59 Misc 3d 1217[A], 2018 NY Slip Op 50597[U], *2 [2018]).

In this case, given the fact that there is no proof the respondent caused the roach problem in the property; given the fact that the steps taken by the petitioners have not stopped the roach infestation in the property; given the fact that the steps taken by the petitioners to prevent roaches not only in the property but in the building housing the property appear to be minimum steps, at best; and given the fact that the roach infestation in the property has increased over the time the respondent and her family have occupied the property, the court determines the rent owed by the respondent should be abated{**76 Misc 3d at 860} as follows: for the months of September 2021 through January 2022, the amount of $100 per month (which was the amount the respondent owed after DSS paid the petitioners $1,000 for each of those months); and for the months of February 2022 through May 2022, the rent of $1,100 should be abated by 40%, which would be $440 each month (see generally Felice v Warf, 65 Misc 3d 305, 318-322 [Middletown City Ct 2019]). Because the respondent and her family apparently are still [*5]occupying the property, the rent of $1,100 per month for the months of June and July 2022 also will be abated by $440 each month.

Based on the above, the court finds the respondent owes rent to the petitioners in the amount of $660 each month from February 2022 through July 2022, for a total amount of $3,960. If the respondent (or someone on behalf of the respondent) pays the amount of $3,960 to the petitioners on or before July 31, 2022, the respondent will be deemed to have paid the petitioners in full through July 31, 2022, and this case will be dismissed. If the respondent (or someone on behalf of the respondent) fails to pay the petitioners a total of $3,960 on or before July 31, 2022, then the petitioners can obtain a judgment against the respondent for $3,960, less any payments against that amount made to the petitioners, and the petitioners also can obtain a judgment of possession and a warrant of eviction effective as of August 1, 2022.

After hearing the testimony at the trial, giving appropriate weight to the testimony of Choi and the respondent, reviewing the notice of petition and petition, and reviewing the documentary evidence produced at the trial, it is ordered that the respondent owes the sum of $3,960 to the petitioners through July 2022, and it is further ordered that judgment shall issue for the petitioners against the respondent in the amount of $3,960, less any payments made against that amount by the respondent (or by someone on behalf of the respondent) to the petitioners, if the full payment of $3,960 is not made by the respondent (or someone on behalf of the respondent) to the petitioners by July 31, 2022, and it is further ordered that a judgment of possession and a warrant of eviction shall issue effective as of August 1, 2022, in the event the respondent (or someone on the behalf of the respondent) fails to pay the full amount of $3,960 to the petitioners by July 31, 2022.