Landlord and Tenant - Warranty of Habitability - Tenant Dignity and Safe Housing Act

Landlord and Tenant - Eviction - Retaliatory Eviction - Tenant Dignity and Safe Housing Act

Margaret Wheeler, petitioner pro se.

Dawn Kowalik, petitioner pro se.

Galli Law, PLLC, Syracuse (Anthony C. Galli of counsel), for respondents.

Petitioners filed a notice of petition and petition on May 29, 2025, pursuant to Real Property Actions and Proceedings Law article 7-D. RPAPL article 7-D codified as sections 797-797-j, known as the "Tenant Dignity and Safe Housing Act," provides a simplified summary proceeding for tenants outside of New York City to bring actions against landlords for habitability and state and local housing code violations.[*2]

Petitioners Dawn Kowalik and Margaret Wheeler had been tenants of 201 John Street apartment B since October 2023, their unit consisting of a two-bedroom unit in a four-unit structure. Petitioners commenced this 7-D proceeding against HamDan Homes Co. LLC and Justin D'Antonio (respondents), on May 29, 2025, and subsequently served respondents with the petition on June 3 and 4, 2025.

Respondent HamDan Homes Co. LLC purchased the subject property on or about February 2024, and Justin D'Antonio is a member of, and property manager for, the LLC. Respondents filed a holdover proceeding on May 9, 2025, seeking to evict petitioners.

Petitioners brought this special proceeding alleging habitability issues and seeking corrective action and repairs including but not limited to: roach and mice infestation; mold in bathroom and around tub; unusable appliances due to infestation; electrical issues and loss of power; plumbing issues including water leaks and compromised ceilings and floors; and inoperable porch stairs and railing. The property also had several city code violations issued March 31, 2025, after petitioners contacted Code Enforcement. Petitioners sought a corrective order regarding necessary home repairs; an abatement of rent during such corrective action; a refund of rent paid for reduced value of rental property; and relief on the pending holdover proceeding.

The court held a hearing on June 13, 2025, and found that respondents are the properly named parties and petitioners had proved their prima facie case against respondents regarding the underlying conditions. The court issued an order to correct, abated the current rent to $0, and set the matter down for a compliance and habitability hearing on July 14, 2025.{**88 Misc 3d at 472}

Petitioners testified to living with rodent and roach infestation, soft spots and holes in the kitchen floor, and electrical issues, which existed prior to respondents' purchase of the property. On several occasions, petitioners requested that the landlord and/or his agent, Mr. James Harris, make repairs. Mr. Harris testified he had made repairs to the kitchen floor where it was "caving in" in early June 2025. He testified that he noticed there were roaches in petitioners' apartment when he was replacing the floor, and that he had seen dead mice in petitioners' kitchen and bathroom, and smelled one in petitioners' stove. Mr. Harris testified there were times when he was told to hold off on repairs as respondents were short on funds, and that it was only earlier this year when respondents started authorizing repairs.

Respondents submitted pest control receipts and reports documenting roach and rodent extermination was performed in March 2024, on all four units in the building. There was considerable rodent infestation of the basement and petitioners' unit due to holes in the floor of their first-floor apartment. Testimony and the reports of the pest control company show that there were many holes in the exterior for vermin and pests to enter the building. A second follow-up roach treatment of petitioners' unit was recommended in March 2024, but the next documented roach extermination did not occur until June 13, 2025, 10 days after respondents [*3]were served with the 7-D petition.

Although the service address for HamDan Homes Co. LLC is respondent D'Antonio's personal address, he testified that he was not aware of the code violations issued on March 31, 2025, until the 7-D action was filed. Respondent D'Antonio testified the issues cited in the code violations existed when the property{**88 Misc 3d at 473} was purchased, and because the City had issued a certificate of compliance, he believed that was the City's "stamp of approval that the property was good as is." Respondent D'Antonio testified he did not consider the issues as safety concerns or habitability issues and told petitioners he was not going to fix them.

Real Property Law § 223-b entitled "Retaliation by landlord against tenant" states in relevant part that a landlord shall not commence a proceeding to recover real property in retaliation for actions taken in good faith by a tenant to enforce rights under the lease or law of the State of New York regulating residential premises. A rebuttable presumption that the landlord is acting in retaliation shall be created if the tenant establishes that the landlord instituted an action or proceeding to recover possession, within one year after a good-faith complaint was made, or good-faith action was taken. Real Property Law § 223-b (5) (c) sets forth that the effect of the presumption shall be to require the landlord to establish a non-retaliatory motive for his acts by a preponderance of the evidence.

Petitioners began withholding rent in November 2024, and in January 2025, respondents served petitioners with a 90-day notice to vacate. Both parties presented text evidence that they discussed a lease renewal in February 2025 and provided documentation that respondent D'Antonio filled out a Department of Social Services (DSS) shelter verification form on February 13, 2025. Petitioners contacted Code Enforcement in March 2025 regarding their habitability issues, and on March 31, 2025, code violations were issued on the property.

A finding of retaliation is not based on reports to Code Enforcement alone. Complaints made to landlords or their agents involving breach of warranty of habitability for issues of health and safety concerns can also be the basis for retaliation (Real Property Law §§ 223-b [1] [a]; 235-b). The text messages between petitioners and respondent D'Antonio document petitioners' plea to remain in the apartment with promises of payment, and respondent D'Antonio replying, "it is time to cut ties" and "there have been too many problems and its not worth his time or money."

Respondents did not overcome their burden to rebut the presumption of retaliation. Respondent D'Antonio insisted that the motive for not renewing the lease and filing the May 9,{**88 Misc 3d at 474} 2025 holdover petition was because petitioners were rude, and he had too much trouble dealing with them. Respondent did file the DSS landlord verification form, but he testified that he only filled out the form to get petitioners "off his back." This court not only finds respondent's actions retaliatory but also fraudulent. In filling out the DSS shelter verification form respondent inflated the actual rent for the unit by over $3,000.00. Together, respondent D'Antonio being less than forthcoming about being a member of the LLC and other inconsistencies in his testimony lead this court to question respondent D'Antonio's credibility.

Review of the testimony of both parties to the action and respondents' witness, together with the photo evidence provided, clearly indicates the habitability concerns. The "soft" part of the kitchen floor in a traffic area is a code violation and created a safety issue. Likewise, roach infestation is a well-documented health concern and code violation. Respondents took no corrective measures to cure these code violations and habitability issues until petitioners filed [*4]the instant action. It is therefore the finding of this court that respondents breached the warranty of habitability as set forth in Real Property Law § 235-b, and filed a holdover petition in retaliation as defined in Real Property Law § 223-b.

Upon consideration of the evidence and testimony presented, it is the judgment of this court pursuant to RPAPL 797-j that it is hereby ordered that holdover action LT-1060-25 is dismissed; and it is further ordered that any rental arrears owed by petitioners are abated to $0; and it is further ordered that respondent HamDan Homes Co. LLC is to issue a refund of $3,500.00 to petitioners for rent paid for the reduced value of the rental property and damages to petitioners' furnishings and belongings.