U.S. Bronsville Ii, Hdfc v Nelson
Annotate this CaseDecided on June 1, 2004
Civil Court of the City of New York, Kings County
U.S. BRONSVILLE II, HDFC, Plaintiff,
against
MILLICENT NELSON, A/K/A MILLICENT THOMPSON, Defendant.
72728/03
Gutman, Mintz, Baker & Sonnenfeldt, P.C. (Matthew Kaufman, Esq., of counsel) for plaintiff.
Millicent Nelson, defendant, pro-se
Manuel J. Mendez, J.
Plaintiff brings this action to recover $3128.64 with interest from January 1, 2000 from defendant for her failure to pay rent pursuant to a lease agreement for the premises located at 2092 Dean Street, Apt. No. A-3, Brooklyn, NY. Defendant argues that she was constructively evicted, surrendered the premises on November 13, 1999 and does not owe plaintiff any money.
FACTS
Plaintiff and defendant entered into a lease on July 1, 1999 for premises located at 2092 Dean Street, Apt. No. A-3, Brooklyn, New York. The lease term was for nine months at a rent of $657.16 per month. Plaintiff presented as a witness Ms. Elizabeth Souhaite. Defendant presented as witness, Ms. Shim, her sister, and also testified on her own behalf.
Ms. Souhaite testified that she is employed by Urban Strategies, the plaintiff herein, and rented premises to defendant at 2092 Dean Street, apt. No. A-3. She further stated she doesn't know when Urban Strategies recovered the premises or when defendant stopped paying rent; however, defendant's billing history[FN1] shows defendant last had a zero balance on November 3, 1999. Ms. Souhaite does not remember if defendant ever made any complaints to her. If defendant did complain she would not write these down because her "position does not allow her to document complaints." Defendant failed to make payments from December 1999 through April 2000 and is in arrears $3,128.64, the disputed amount.
Defendant counters through her testimony and that of her witness that she does not owe the [*2]money because she was constructively evicted and on November 13, 1999, after paying the November rent, she surrendered the premises to plaintiff by delivering the keys to Ms. Souhaite at the management office.
Ms. Shim testified that she visited her sister, defendant, at the premises on a number of occasions. The apartment was full of roaches, there was a smell of marijuana in the hallway, there were always people hanging out and sitting on the stoop in front of the apartment and on the steps leading to the apartment. She was concerned for the safety of her sister and nephew and encouraged defendant to move out.
Defendant testified that she lived in the apartment with her young child. She stated that the apartment was crawling with roaches and no matter what she did, they would not go away. There were always people hanging out in front of the building and in front of her apartment. These people would smoke marijuana and sell drugs. They would knock on her door to try to sell her drugs and other items. At one time, they got on the window sill and knocked on her window. After she complained to the police, she was afraid to stay in the apartment because she feared for her life and that of her child. Some of the characters that loitered in the premises approached her and in a menacing tone, told her that "Around here we don't call the police." Additionally, her mailbox was constantly broken and the tires on her vehicle were intentionally slashed.
She complained to management on approximately ten occasions by speaking to Ms. Souhaite. Defendant informed Ms. Souhaite of the situation in the apartment and asked her to find her a safe place to live. By the third week in July she was spending more time away from the apartment than in it because she was afraid to stay there. In November 1999, she told Ms. Souhaite she had found a new place to live and would be surrendering the premises. On November 13, 1999, she moved out and gave Ms. Souhaite the keys. In December she called Ms. Souhaite and asked for her security deposit which she received by mail at her new place of residence. Defendant never received a bill for rent arrears and first became aware of owing them when she received a judgment in the mail.
LAW
There are various ways in which a lease can be terminated prior to the expiration of a lease term. Constructive eviction, abandonment and/or surrender are a few of the ways a lease may be terminated. Constructive eviction occurs when the conditions in the premises are dangerous to the tenant's life, health or safety rendering the unit uninhabitable (See Real Property Law § 235-b). An intolerable condition which the tenant neither causes nor can remedy warrants the application of the Constructive Eviction Doctrine (Barnard Realty Company v. Carl Bonwit, 155 AD 182; 139 NYS 1050 [1st Dept. 1913]).
The obligation of the tenant to pay rent is dependent upon the landlord's satisfactory maintenance of the premises in a habitable condition. It is impossible to attempt to document each and every instance in which the warranty of habitability could be breached; therefore each case must be decided on its own peculiar facts. In dealing with this issue, courts have found a breach in the warranty of habitability when porters and handymen at a building complex went on strike, the building was not cleaned, garbage piled up festering and exuding noxious odors creating conditions in which rats, roaches and vermin flourished (Parkwest Management Corp. v. Mitchell, 47 NY2d 316; 418 NYS2d 310 [Ct. App. 1979]); where a garbage dumpster was placed outside of defendant's townhouse emanating appalling odors causing defendant's family to become ill and preventing him from enjoying the use of his deck or the company of friends (Mayourian v. Tanaka, 188 Misc. 2d [*3]278; 727 NYS2d 865 [2nd Dept 2001]).
Similarly courts have found the Constructive Eviction Doctrine applicable where a tenant was harassed and terrorized, the windshield of her car was smashed, the four tires were slashed, the windshield wipers were broken off, people would bang on her door at all hours and make threats and throw stones at the door (Auburn Leasing Corp v. Burgos, 160 Misc. 2d 374; 609 NYS2d 549[Civ. Ct., Owens County 1994, Schmidt, J.]). The landlord has an obligation to take steps to protect tenants from a violation of their right to quiet employment of the premises (Auburn Leasing Corp. . Burgos, supra).
In the matter before us, defendant and her witness testified and the court credits their testimony, that the premises were infested with roaches, that there were people hanging out in front of the building and in front of the apartment, these people smoked marijuana and sold drugs, they tried to sell drugs and other items to the defendant, they banged on her door at all hours and even got on her window sill, they broke her mail box, and after she complained to management and the police, slashed her vehicle's tires. This landlord did nothing to remedy this situation which affected the use and enjoyment of the premises, making them uninhabitable, and effectively constructively evicting the defendant.
When it is evident that it is not safe for the tenant or her family to live in the apartment any longer, a reasonable and prudent course of conduct is to vacate it before the lease expires (See RPL§ 235-b; Auburn Leasing Corp. v. Burgos; Mayourian v. Tanaka, supra).
The landlord-tenant relationship can also be terminated by the tenant abandoning the premises. In order for the abandonment to occur, the tenant must have the intent to abandon the premises and engage in some act or failure to act that indicates she no longer has an interest in the premises (Residential Landlord-tenant Law in New York 2004 Edition §2:111 pg. 2-45; Bay Park Two v. Campionio, NYLJ, September 23, 1992 at 21 (Col. 1) [Civ. Ct., Kings County, Scott, J.]).
However, when the parties to a lease both do some act so inconsistent with the landlord-tenant relationship, it indicates their intent to deem the lease terminated (Riverside Research Institute v. KMGA, Inc., 68 NY2d 689, 691-692; Brock Enterprises Ltd. v. Durham's Bay Boat Company, Inc. 292 AD2d 681; 738 NYS2d 760 [3rd Dept. 2002], in effect turning an abandonment into a surrender by operation of law (Forest Dagett v. Emelie M. Champney, 122 AD2d 254; 106 NYS2d 892 (3rd Dept. 1907)).
When a tenant abandons possession and the landlord utilizes the premises in a manner inconsistent with the abandoning tenant's rights of possession surrender will be inferred (Brock Enterprises Ltd. v. Durham's Bay Boat Company v. Durham's, supra; Stahl Assoc. Co. V. Mapes, 111 AD2d 626; Centurian Dev. Ltd. v. Kenford Co., 60 AD2d 96). The tenant's return of the keys and the landlord's re-letting the premises demonstrate the parties' intent to terminate the lease (Bay Plaza Estates v. New York University 257 AD2d 472; NHS Nat. Health Services, Inc. v. Kaufman, 250 AD2d 528; David Present Co. v. Tamasauskas, 210 A.D. 786).
It is unrefuted that defendant had communicated to management her intention to leave the apartment due to its uninhabitability. Ms. Souhaite does not remember having engaged in a conversation with defendant approximately five years ago regarding the conditions then existing in the apartment. She does not remember being told in November 1999 that defendant would be vacating the premises that month; or receiving the keys from defendant or refunding her security deposit. She does not remember when exactly defendant vacated the premises. However, if the [*4]issue has to be litigated, the burden of proving the tenant abandoned the premises is on the landlord (Sam & Mary Housing Corp. v. Jo/Sal Market Corp.; 121 Misc2d 434, 468 NYS2d 294; Allan v. Binghamton Housing Authority, 82 Misc2d 932, 372 NYS2d 835). The landlord has failed in this burden as it produced a witness without personal knowledge of the facts.
On the other hand, defendant has demonstrated that she surrendered the premises by returning the keys to the landlord and the landlord accepted this surrender when it returned her security deposit. The facts demonstrate that there has been a surrender by operation of law effectively terminating the lease in November 1999. On this date, both parties performed acts contrary to the landlord-tenant relationship. Defendant vacated the premises, surrendered her keys and the landlord accepted the keys and returned her security deposit. (See Brock Enterprises Ltd. v. Durham's Bay Boat Company v. Durham's Bay, supra).
CONCLUSION
This Court finds that the conditions in the apartment were dangerous to the life, health and safety of the defendant and her young child. These conditions in effect breached the implied warranty of habitability and constructively evicted defendant from the premises. It further finds that defendant's act of vacating the premises and surrendering the keys to the landlord, and the landlord's act of returning the defendant's security deposit are inconsistent with the landlord-tenant relationship indicating their intent to deem the lease terminated.
Accordingly, it is the judgment of this court that plaintiff's complaint against defendant to collect the amount of $3,128.64 with interest from January 1, 2000 in rent arrears is hereby dismissed.
This constitutes the decision and judgment of this court.
Dated: June 1, 2004
Manuel J. Mendez
J.C.C.
Footnotes
Footnote 1:Submitted as Exhibit 2 in evidence.
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