Landslide Holding Corp. v Cespedes

Justice Court of the Town of Haverstraw, Rockland County

Decided on April 5, 2026

Case No. 25100081

George G. Coffinas, J.

This matter is a summary proceeding to recover possession of real property based upon nonpayment of rent, brought under the provisions of RPAPL § 711. The matter duly came on for trial before the Court on December 1, 2025, February 9, 2026 and March 23, 2026.

The Trial Evidence

Petitioner called one witness, to wit, Daniel Freeman, its president. Respondent Diana CespedesFN1 (hereinafter, "respondent"), appearing pro se, in addition to testifying herself, called the following witnesses: the aforesaid Daniel Freeman; Amber McBean, an inspector with the Rockland County Department of Health; Domingo Lopez, an Assistant Building Inspector for the Village of Haverstraw; and Ruben Barrios, a Building and Fire Inspector for the Village of Haverstraw.

One exhibit was offered by petitioner and admitted into evidence by the Court without objection as Petitioner's Exhibit "1," to wit: a Rockland County Department of Health Individual Inspection Report, dated 5/22/25, with attached photographs.

The following exhibits were offered by respondent and admitted into evidence by the Court:

After due deliberation upon the foregoing, and upon reading the post-trial written summations of the parties, the Court decides as follows.

The petition herein alleges rent due for the months of July, 2025 to October, 2025, inclusive, in the total amount of $6,200.00. Thereafter, during the course of this proceeding, the Court granted applications by petitioner to amend the petition to include the months of November, 2025 through and including March, 2026, bringing the total amount alleged to be due to the sum of $13,950.00.

Respondent does not dispute the amount of unpaid rent. Rather, respondent has raised an affirmative defense of breach of the warranty of habitability. Specifically, respondent claims that as a result of a broken gutter water infiltrated a wall in one of the bedrooms in the subject premises, which led to mold contamination, rendering the premises inhabitable. It appears that petitioner first learned of the water leak on March 25, 2025, when it was contacted by the Rockland County Department of Health that a complaint had been filed with that agency. The evidence further shows that within one to two days of receiving notice of the condition, respondent caused its superintendent to inspect the premises and arrange for repairs to be made. It further appears that the repair work was completed within two weeks of petitioner being notified of the condition.

The evidence shows that the Department of Health conducted four inspections during the relevant time period, to wit, on March 25, April 21, May 8, and May 22, 2025. The first inspection revealed a number of code violations none of which related to water damage or mold. Inspector McBean, who conducted that inspection testified that she did observe water damage on the wood surrounding the windows, but that all windows were in the process of being replaced. See Resp. Exh. "5."

At the second inspection, on April 21, Inspector McBean observed that all windows had been replaced, but that repairs of the window frame and wall in one bedroom were incomplete. As of that date, all but two violations had been cleared. The remaining violations related to the smoke and carbon dioxide detectors in the premises. See Resp. Exh. "8."

Inspector McBean testified that at the third inspection, which she conducted on May 8, 2025, the two remaining violations had been cleared and she closed her file on the matter.

A fourth and final inspection was performed on May 22, 2025 by Inspector McBean's supervisor, Inspector Meredith Kurisko. Of note, the report for that inspection states inter alia, that "the walls were not damp or wet" and "[t]here was no odor associated with mold, mildew or mustiness." The report concludes by indicating that the matter was now closed. See Pet. Exh. "1."

In addition to the Department of Health inspections, the Village of Haverstraw Building Inspector's office, in response to a complaint from respondent made on March 25, 2025, conducted an inspection on that date, in which water damage around window sills and some missing sheetrock, as well as some other non-water related issues as well. See Resp. Exh. "12." On a follow-up inspection, performed on April 15, 2025, the inspector, in his report, indicated that there were "new wood frame and new window's frame and sill," and wrote "pass." The inspector concluded his report by writing " needs to install insulation and finish all work for [*4]next inspection." Id. The inspector, Domingo Lopez, testified at trial and stated that on the April 15th inspection he observed that most of the work had been completed.

Respondent also offered evidence of mold testing that had been performed at the subject premises. A Mold Assessment Report prepared by Top Home Inspection Services LLC dated 3/27/25 was admitted into evidence for the limited purpose of establishing that petitioner had notice of respondent's claim of a mold condition (Resp. Exh. "6."). Additionally, a report prepared by Tri-State Mold Remediation, dated 4/13/25, was admitted into evidence (Resp. Exh. "7."). This latter report was commissioned by petitioner. The report states, inter alia, the author's company performed an inspection on April 4, 2025, and that "[a]t the time of the inspection, there were no visible signs of mold observed in the area." The report further states:

The lab results for air sampling were low/very low for mold spores. As I am a NYS Licensed Mold Assessor, I recommend vacuuming and cleaning the tested area, as well as replacing drywall in the left bedroom.

See Resp. Exh. "7." The Court notes that the Department of Health and building inspector's reports cited above indicate that by April 21, 2025 the drywall work was substantially complete and by May 22, 2025 was fully completed. See Pet. Exh. "1" and Resp. Exhs. "5" and "12."

Lastly, respondent offered an ERMIFN2 Analytical Test Report prepared by EnviroBiomics, Inc., dated June 10, 2025 (Resp. Exh. "11."). The respondent testified that the analysis was performed on samples that respondent herself collected from the premises and sent to EnviroBiomics. Respondent testified that she collected the samples in the "second or third week of June." The report appears to state that the firm's analysis found an ERMI of 38.9, which the report "interprets" as a "very high relative" "moldiness index." Id. The Court finds this report to be of limited value. The Court is mindful of the provisions of RPL § 235-b (3) (a) which state that "[i]n determining the amount of damages sustained by a tenant as a result of a breach of the warranty [of habitability], the court need not require any expert testimony." Nevertheless, it would have been helpful to have the in-court testimony of the author of the report to interpret the findings in a more particularized and detailed manner. Also, the manner in which the analysis was performed (sample collection by a layperson) lacks the scientific rigor such that the accuracy of the findings is called into question. Despite these reservations, the report was admitted into evidence, in deference to the fact that respondent is proceeding pro se, and overall it bore indicia of reliability, however, the weight accorded to it by the Court is minimal.

Applicable Legal Principles

Every residential written or oral lease or rental agreement contains an implied warranty of habitability. RPL § 235-b (1). That section of the statute provides, inter alia, as follows:

In 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 and all areas used in connection therewith in common with other tenants or residents 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.

A breach of the implied warranty of habitability may be asserted as an affirmative defense in a nonpayment proceeding as an offset to rent arrears sought. Park West Management Corp. v. Mitchell, 47 NY2d 316 (1979).

In order to sustain an affirmative defense of breach of the warranty of habitability, a party must establish a breach of any of the following covenants: "(1) that the premises are fit for human habitation, (2) that the premises are fit for the uses reasonably intended by the parties, and (3) that the occupants will not be subjected to conditions that are dangerous, hazardous or detrimental to their life, health or safety." RPL § 235-b; Goldhirsch v. St. George Tower and Grill Owners Corp., 142 AD3d 1044 (2d Dept. 2016). The Court of Appeals has clarified that the three elements set-forth in the statute are three separate and distinct covenants. Solow v. Wellner, 86 NY2d 582 (1995). Thus, the breach of any one of the three covenants may serve as the basis for a claim of breach of the warranty of habitability. Id.

Water leaks and the presence of mold have both been found by courts to constitute a breach of the warranty of habitability. See Grinberg v. Eissenberg, 58 Misc 3d 84 (App. Term, 2, 11 & 13 Jud. Dists.) (water leaks and mold); and Cornell v. 360 W. 51st St. Realty, LLC, 95 AD3d 50 (1st Dept. 2012) (mold).

Damages for breach of the warranty of habitability are "measured by 'the difference between the fair market value of the premises if they had been as warranted, as measured by the rent reserved under the lease, and the value of the premises during the period of the breach.'" Edstrom v. St. Nicks Alliance Corp., 194 AD3d 518 (1st Dept. 2021).

Applying the foregoing principles to the evidence adduced at trial, the Court finds that the warranty of habitability was breached by petitioner for a period of three months, specifically, from March to May, 2025, inclusive. The Court finds that the premises were not fit for the uses reasonably intended by the parties during that period of time. However, by May, petitioner had made the necessary repairs to the premises. Respondent's default in payment of rent began in July, 2025 — two months after petitioner cured its breach. The Court will therefore credit respondent with three months rent, for a total of $4,650.00 (March to May at $1550 per month), and otherwise decides that petitioner is entitled to the relief it seeks, subject to the foregoing credit against rent due.

Accordingly, it is the decision of the Court that petitioner is entitled to a judgment of possession, a warrant of eviction, and a money judgment in the amount of $9,300.00, against respondent Diana Cespedes.

It is therefore,

ORDERED, that petitioner is directed to settle a judgment and warrant of eviction, within 60 days of the date hereof, in accordance with the foregoing decision.

Dated: April 5, 2026

Garnerville, New York

E N T E R.

Hon. GEORGE G. COFFINAS

Town Justice, Town of Haverstraw