Jefferson House Assoc., LLC. v Boyle

[*1] Jefferson House Assoc., LLC. v Boyle 2005 NY Slip Op 50225(U) Decided on February 28, 2005 Justice Court Of Town Of Ossining, Westchester County Shapiro, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 28, 2005
Justice Court of Town of Ossining, Westchester County

Jefferson House Associates, LLC., Petitioner-Landlord

against

Christa Boyle, Respondent-Tenant



05010215



FINGER & FINGER, a Professional Corporation

Attorneys for Petitioner

158 Grand Street

White Plains, NY 10601

CHRISTA BOYLE Respondent pro se

81 Charter Circle, Apt. 4B

Ossining, NY 10562

Edwin S. Shapiro, J.

Petitioner ("Landlord") brings this summary proceeding for non-payment of rent for

apartment 4B, a studio apartment at 81 Charter Circle, Ossining, New York, for the months of

December 2004 and January 2005. On the return date, respondent ("Tenant") appeared pro se

and interposed affirmative defenses as the result of (1) an ongoing infestation of bedbugs from

April 2003 to October 2003; (2) a sporadic but ongoing dripping of alleged sewage from her

bathroom ceiling from April 2003 to November 2004; and (3) alleged theft of her mail as the

result of the probable opening of her mail box by another tenant whose key also matched her

mailbox, requiring Tenant to open a mail box at the post office and to incur the cost thereof and

the time and round trip taxi expenses to and from the post office at least three times a week. The

case was adjourned for trial at Landlord's request to February 17, 2005.

At the inception of the bench trial, the court granted Landlord's oral motion to amend the

petition to include the February 2005 rent.

FINDINGS AND ANALYSIS OF THE FACTS

Although Landlord attempted to depict Tenant as an untruthful eccentric, the court [*2]

was favorably impressed by her demeanor and credits her testimony that there was a serious

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bedbug infestation in her apartment and an often malodorous leak from her bathroom ceiling

from the inception of her tenancy in April 2003 until November 2004, that she complained about

these conditions to Enes Durovic, the building's resident superintendent, several times, and, as

was usually the case, when virtually nothing was done about the conditions, by a series of

telephone calls to the Landlord's management company, leaving messages with either the

receptionist or a person named "Pat." The court also credits Tenant's testimony that she was

intimidated by Enes's threats and/or verbal abuse.

On the other hand, the court was "underwhelmed" by Enes's demeanor and found his

testimony defensive, evasive, and inconsistent until his still inconsistent responses to the leading

questions of Landlord's counsel, and therefore not believable. The court finds that there were no

notations of complaints in Landlord's file only because the superintendent and the recipients of

Tenant's telephone calls failed to report and/or to record them, although it was their duty to do

so. It was not until a visit from an inspector from the Village of Ossining Building Department

in October 2003, that Landlord began to pay serious attention to Tenant's complaint about the

bedbug infestation and actually did something meaningful about it. Tenant was required to vacate

the apartment for 24 hours in order to allow for treatment with strong chemicals. It was Tenant's

complaint to the Buildings Department after her oral complaints were mostly ignored that

precipitated its inspection and Landlord's response thereto. That complaint should be accorded at

least as much weight as a written complaint to Landlord and the court finds that, under the

circumstances, it was disingenuous to have expended so much time and effort during trial aimed [*3]

at holding this particular Tenant to the same notice standards as would be expected from an

attorney or a more sophisticated litigant than she.

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Similarly, Landlord's suggestion that the infestation may have been caused by the messy

condition of Tenant's apartment contradicts the earlier testimony of its exterminator, who

acknowledged that the bedbugs infestation in Tenant's apartment and in other apartments in the

building had its inception well prior to the instant tenancy. Plain and simple, the building had a

serious bedbugs problem and the court infers from the testimony of the exterminator, who was

only belatedly engaged on a contractual and continuous basis, that Landlord initially ignored it

or was unwilling to spend the money necessary to correct it until confronted by the Village

of Ossining Buildings Department in October 2003. It was not until January 31, 2005, after its

first appearance in this proceeding, that Landlord next sent the exterminator back to the

apartment, and it was only then, after the matter was in litigation, that the same fumigator

mentioned the existence of fungus gnats from Tenant's plant, silver foil surrounding Tenant's

futon, and that Tenant's messy apartment, including stacks of newspapers and magazines, either

caused the condition or impeded access to the infected areas of the one-room apartment. However,

there was apparently no request or suggestion made that Tenant replace her futon.

Although Landlord's counsel questioned Tenant as to whether she was certain that the

dead bugs in the plastic container, in evidence as Tenant's Exhibit 1, were actually bedbugs,

significantly, he did not ask his expert witness, the exterminator, to examine them and to give his

professional opinion on the question that counsel had previously raised. In fact, on at least one [*4]

occasion, the same exterminator inspected the bites on plaintiff's arms and confirmed that they

were indeed bedbug bites, and on at least two occasions over a period of time, that there were

infestations of bedbugs in the apartment. Therefore, Tenant's testimony as to the nature of the

insects, and of the bites on her body and on her cat, remains effectively unchallenged.

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There was insufficient evidence for the court to determine that the discolored water

dripping from her bathroom ceiling was, in fact, sewage rather than clean water permeated by rust.

However, in either event, the court finds that (1) the leak created an ongoing unpleasant and

unsanitary condition that was detrimental to the health of Tenant; and (2) Tenant's bathroom

was, therefore, virtually uninhabitable for eighteen months.

By reason of the continuous infestation of bedbugs through October 2003, and, to a

lesser extent, from then to January 31, 2005, and the unpleasant and sometimes malodorous leak

which went unattended to for about eighteen months, the premises were unfit for human

habitation and for the uses reasonably intended by the parties and constituted conditions that

were dangerous or detrimental to the health and safety of Tenant. By reason thereof, there was

also a substantial diminution in the fair rental value of her apartment. However, subsequent to its

treatment on January 31, 2005, the apartment was free of bedbugs.

The court further finds that the ongoing unhealthful conditions were as the result of

Landlord's insufficient attention rather than any misconduct by the Tenant herein.

For reasons later stated, no findings are made with respect to Tenant's affirmative

defense relating to her insecure mailbox. [*5]

IMPLIED WARRANTY OF HABITABILITY: ANALYSIS

As to whether Landlord had an obligation to maintain the premises in habitable condition,

a landlord's Warranty of Habitability is established by Real Property Law § 235-b. It requires

landlords of residential premises to make repairs and to keep the premises fit for human

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habitation and for the uses reasonably intended by the parties and free from conditions that would

be dangerous, hazardous or detrimental to the life, health or safety of the tenants. In Park West

Management Corp. v. Mitchell , 47 NY2d 316 (1979), the Court of Appeals explains, explicitly

and by inference, the warranty of habitability: (1) the landlord is responsible for maintaining the

premises in decent condition even if the problems are not caused by its negligence; (2) the

tenant's obligation to pay the agreed rent is conditioned upon the landlord's keeping the premises

habitable; (3) the tenant does not have to move out in order to claim that the warranty has been

breached; (4) the standard for determining whether the premises are habitable is the expectations

of a reasonable person; (5) that damages are not susceptible to precise determination does not

insulate the landlord from liability; and (6) expert testimony is not required.

Furthermore, the requirement that tenants must supply written notice of any defects in the

premises is improper because it circumscribes their ability to assert rights that stem from an

implied warranty imposed by statute. Vanderhoff v. Casler, 91 AD2d 49 (3rd Dept. 1983).

CONCLUSIONS OF LAW AND MEASURE OF DAMAGES [*6]

This court concludes that Tenant has established by a preponderance of the credible

evidence that Landlord has breached its warranty of habitability with respect to the subject

premises and that she has sustained a detriment to her health by reason of (1) the inhalation of

unpleasant odors emanating from discolored water dripping from the bathroom above hers on a

daily basis for approximately eighteen months; (2) being bitten by bedbugs nightly for at least six

months and usually several nights per week thereafter for an additional fifteen months.

As to the measure of her damages, Tenant may recover the difference between the fair

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market value of the premises in good repair, as measured by the agreed rent, and their value

during the period of the breach as determined by the trier of facts. Notwithstanding Tenant's

payment of the rent in full prior to December 2004, her abatement must be computed for the

entire period during which the defective conditions existed and may range from 1% to 100% of

the monthly rent. Century Apartments v. Yalkowsky, 106 Misc 2d 762 (Civil Ct. NY Co. 1980).

In determining the amount of the abatement the court may consider the severity of the defects,

the period of time during which they existed, and their impact on the tenant's living habits as

well as the effectiveness of the landlord's attempt to remedy them. Concord Village Management

v. Rubin, 101 Misc 2d 625 (Dist. Ct. Suffolk Co. 1979); Park West Management Corp. v.

Mitchell, supra, p 5.

Tenant has stipulated that Landlord's orally amended petition correctly states the rent due

for the months of December 2004, January 2005 and February 2005, absent the court's [*7]

consideration of her affirmative defenses, in the amount of $2,840.00. Applying its findings of

fact to the existing law, the court concludes that Tenant is entitled to a 50% abatement of her rent

for six months during the year 2003 and a 20% abatement thereafter through January 31, 2005,

with a cap to the extent of Landlord's claim in its amended petition for rent in the sum of

$2,840. 00 for the past three months. Since Tenant did not file a counterclaim for damages

exceeding the extent of Landlord's claim for rent, any claim for damages over that amount is

dismissed without prejudice. Although her claim for damages arising from Landlord alleged

failure to provide her with a secure mailbox may in no event be construed as a breach by

Landlord of its warranty of habitability, it may nevertheless be a viable affirmative defense.

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However, it is hereby dismissed without prejudice for the reason that it was not interposed as a

counterclaim and, therefore, also exceeds Landlord's claim for rent.

This decision shall constitute an order of the court and the Clerk is directed to enter

judgment dismissing the Landlord's claim for rent in its entirety.

Dated: Ossining, New York

February 28, 2005

Edwin S. Shapiro,

Ossining Town Justice

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