Choudhury v Ramtahal

[*1] Choudhury v Ramtahal 2009 NY Slip Op 51423(U) [24 Misc 3d 1211(A)] Decided on May 20, 2009 Civil Court Of The City Of New York, Kings County Fiorella, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 20, 2009
Civil Court of the City of New York, Kings County

Mohammed Choudhury, Petitioners,

against

Choylan Debbie Ramtahal, JOHN DOE and JANE DOE, Respondents.



L & T 61350/09



Attorneys:

Carl Unegbu, Esq.

Ronald Paul Hart, P.C.

Attorneys for Petitioner

225 Broadway, Suite 912

New York, New York 10007

Jacques David, Esq.

The Legal Aid Society

Attorneys for Respondent

111 Livingston Street, 7th Floor

Brooklyn, New York 11201

Anthony J. Fiorella, J.

The petitioner commenced this holdover proceeding seeking recovery of the premises located at 576 East 2nd Street, Apt. 1R, Brooklyn, New York 11218, based on the fact that the respondent's lease expired on May 1, 2006. The respondent became a "month to month" tenant and the landlord, the owner of the four (4) family house, elected to terminate her tenancy. The petitioner served a 30-day Notice of Termination on or about October 20, 2008, followed by a Notice of Petition and Petition. On or about March 2, 2009 the respondent through her attorneys filed an Answer with Counterclaims. The respondent alleged: 1) failure to state a cause of action, 2) retaliatory eviction, 3) breach of the warranty of habitability; and after trial, without moving to amend her answer: 4) discrimination based on her source of income. In her counterclaims, the respondent demands punitive damages, damages and other relief related to the alleged breach of the warranty of habitability, as well as attorney's fees. On the same date, this case was transferred to the trial part and the trial concluded on March 24, 2009. The respondent failed to appear on March 2, 2009, and despite explicit direction from the Court, she again failed to appear on March 24, 2009. The petitioner is entitled to the missing witness charge requested by counsel at trial. See 885-79 [*2]LLC v. Salas, 40 AD3d 553, 837 NYS2d 631 (2007), 300 W. 106th St. Corp. v. Rosenthal, 2004 NY Slip Op 51891(U). This Court will take into consideration that the respondent failed to appear for both trial dates, and further, that this case was on the Court's calendar five (5) times and the respondent appeared only once.

FAILURE TO STATE A CAUSE OF ACTION

The respondent objects to the Notice of Termination dated October 15, 2008 as fatally defective since it allegedly does not terminate her tenancy at the end of the rental term. The petitioner's 30-day Notice of Termination requests that the respondent vacate the premises by December 6, 2008 or the landlord will commence a summary proceeding. Since the tenant's expired lease ended on May 1, 2006, presumably her month-to-month tenancy ended on November 30, 2008. Real Property Law § 232-a requires that: "No monthly tenant, or tenant from month to month, shall hereafter be removed from any lands or buildings in the city of New York on the grounds of holding over his term unless at least thirty days before the expiration of the term the landlord or his agent serve upon the tenant (...) a notice in writing to the effect (...)."

Since the notice of termination was served well before November 1, 2008, the petitioner acted according to the statue. The respondent's objection with respect to the Failure to State A Cause of Action is dismissed.

RETALIATORY EVICTION

The respondent alleges that the petitioner commenced the instant holdover proceeding as retaliation for her "good faith" complaint to HPD regarding lead paint hazards, bedbugs and other conditions hazardous to life, health, and safety. The respondent's evidence included copies of HPD documentation along with a complaint filed by the respondent on September 19, 2008 complaining about lead paint, other problems with paint and defective plaster surfaces in some parts of the apartment, leaky and/or defective faucets in the bathroom, a collapsing ceiling in the bathroom, mice, bed bugs, roach infestation, as well as the lack of both carbon monoxide and smoke detectors. The respondent also filed complaints on January 14, 2008 and February 20, 2009 complaining about a lack of heat. The petitioner's 30-Day Notice of Termination is dated October 15, 2008, less than one month after the respondent's first complaint to HPD. This raises a presumption of retaliation under Real Property Law § 223-b. Real Property Law § 223-b provides in pertinent part: "5. In an action or proceeding instituted against a tenant of premises or a unit to which this section is applicable, a rebuttable presumption that the landlord is acting in retaliation shall be created if the tenant establishes that the landlord served a notice to quit, or instituted an action or proceeding to recover possession, or attempted to substantially alter the terms of the tenancy, within six months after:a. A good faith complaint was made, by or in behalf of the tenant, to a governmental authority of the landlord's violation of any health or safety law, regulation, code, or ordinance, or any law or regulation which has as its objective the regulation of premises used for dwelling purposes or which pertains to the offense of rent gouging in the third, second or first degree; (...)"

However, the same section states: [*3] "The effect of the presumption shall be to require the landlord to provide a credible explanation of a non-retaliatory motive for his acts. Such an explanation shall overcome and remove the presumption unless the tenant disproves it by a preponderance of the evidence."

During the trial the petitioner credibly testified that he had numerous problems with the respondent since she began living in the premises - that is, since June 2005 - and that is why (in September 2008) he notified her of his intention to refuse to renew her lease which had expired in May 2006. He also testified that the respondent flooded the bathroom eight to nine times which resulted in a collapsed ceiling in the basement. Moreover, he alleged that she has never paid her rent on time (though no evidence of that was introduced at trial), that she would often disconnect the door bell in her apartment in order to prevent him from coming to collect the rent, and that he received constant complaints from her neighbors regarding noise and reports of stormy altercations with her boyfriend. The petitioner asserted that he discovered the need for repairs in the respondent's apartment from the violations issued by the HPD. He credibly testified that the respondent did not inform him in advance at any time about the conditions in her apartment, nor did she give him a prior opportunity to correct them. In fact, her contact to HPD was the first time in the three years she has been living in the apartment that the respondent decided that the subject premises needed repairs. Coincidently, the respondent's complaint was filed with HPD right after the following incident with the landlord: the petitioner testified that in September of 2008, the tenant presented him with a letter (which was introduced into evidence as petitioner's exhibit No. 5) from the New York City Human Resource Administration - a "Request for Residence Verification" - which the respondent needed in order to obtain public assistance. The petitioner admitted that he refused to provide any information because, as he informed the respondent, he did not intend to continue his relationship with the tenant. In the petitioner's opinion that is what prompted the respondent to file a complaint with HPD.

The above summarized testimony was not confirmed or rebutted by the respondent because she was not present at her own trial.

As disturbing as it may be that the petitioner served a Notice of Termination within six (6) months after the complaint to HPD was made, and that violations were found in the respondent's apartment, this Court finds that the petitioner provided a reasonable and credible explanation as to his non-retaliatory motives. See, Gelmo Realty v. Fiore, 1 Misc 3d 129(A), 781 NYS2d 624 (2003). Moreover, the petitioner testified that once he was informed that HPD issued violations with respect to the respondent's apartment, he promptly corrected them. Again, it cannot be overlooked that the respondent did not bother to appear for trial to refute the petitioner's testimony as to the facts, or to refute his allegations of her objectionable conduct.

BREACH OF THE WARRANTY OF HABITABILITY

It is well established that the claim of breach of warranty of habitability is not an affirmative defense to a holdover proceeding. It is however, inextricably related to claims for use and occupancy. Considering the fact that there were violations in the respondent's apartment, including C violations for lead paint, that according to the petitioner's uncontradicted testimony, he had no notice of or opportunity to cure, and although the violations were promptly corrected the respondent is awarded a $450.00 abatement. Respondent's counterclaim for punitive damages is denied. Punitive damages can be awarded for a breach of the warranty of habitability where the landlord has [*4]acted willfully and flagrantly or in reckless disregard for the health and safety of the tenants. See page 772 of Scherer's treatise on Residential Landlord-Tenant Law in New York City § 12:114 (2007-2008 Edition). This Court finds no basis to award punitive damages in this case.

DISCRIMINATION BASED ON SOURCE OF INCOME

After trial the respondent asserted that the petition must be dismissed on the grounds of impermissible discrimination based on her source of income. It is true that the petitioner testified that he specifically refused to accept any public assistance that the respondent could potentially receive, however, this Court disagrees that his refusal violated any laws. The respondent claims that the petitioner violated the recent amendments to the Administrative Code of the City of New York known as "Local Laws of the City of New York for the Year 2008, No. 10". The respondent also cites Kosoglyadow v. 3130 Brighton Seventh, LLC, 2008 WL 4260831 and Cosmopolitan Associates LLC v. Fuentes, 11 Misc 3d 37, 812 NYS2d 738 and other cases unrelated to this particular issue.

§ 6 of Local Law No. 10 states: "(o) Applicability: lawful source of income. The provisions of this subdivision, as they relate to unlawful discriminatory practices on the basis of lawful source of income, shall not apply to housing accommodations that contain a total of five or fewer housing units (...)"

Unless the respondent can prove that the petitioner is an exception to this exemption, Local Law No. 10 is not applicable in this case. The cases cited by the respondent are unrelated to the case at bar as they concern violations of the anti-discrimination provision of the J-51 tax abatement law regarding a refusal to accept the Section 8 rent subsidy. In the case at bar, we are faced with the private owner of a property which contains only four units. As the property is neither rent-stabilized nor subject to tax abatement laws, the aforementioned cases do not apply. The petitioner is consequently not required to sign or extend a lease, or accept public assistance on behalf of a tenant.

CONCLUSIONReal Property Law § 223-b requires that a complaint to a governmental authority is made in "good faith". Considering the overall behavior of the respondent it is questionable that she acted in compliance with this requirement. The petitioner testified that the tenant never mentioned that her apartment required repairs, except for the times when she herself flooded her bathroom. The petitioner must have had to make continuous repairs to her bathroom and to the basement ceiling for without these repairs, there would be no ceiling left to flood. It is difficult to believe that the respondent acted in good faith when she continually failed to appear in the Court in her own case which might result in her eviction. Another example of the respondent's conduct that makes this Court skeptical of her good faith is the fact that the respondent completely ignored four (4) orders from three (3) different Judges to pay interim use and occupancy. The first order was issued by Judge John Lansden on January 22, 2009; the second was ordered by Judge Bruce Scheckowitz on February 18, 2009 (directing her to comply with Judge Lansden's order); the third order was issued by Judge Anthony Fiorella, Jr. on March 2, 2009 and again on March 24, 2009. There was no [*5]compliance by the respondent with any of the above-mentioned orders.

The Court finds that the petitioner created the presumption of a retaliatory eviction according to Real Property Law § 223-b but provided a reasonable and credible explanation as to his non-retaliatory motives and thus, successfully rebutted the presumption. Accordingly, petitioner is awarded a final judgment of possession. The warrant of eviction shall issue forthwith, and execution of the warrant is stayed to June 12, 2009 to allow the respondent to vacate the premises in an orderly manner. The petitioner is also awarded a money judgment in the amount of $4,950.00 which represents arrears through April 30, 2009 after deducting a $450.00 abatement (six (6) months at $900 per month is $5,400.00; $5,400.00 minus $450.00 amounts to $4,950.00). The respondent is directed to pay use and occupancy of $900 for month of May.

Parties to appear for a hearing on attorney's fees on Tuesday June 9, 2009 at 2:45 pm.

This constitutes the decision and order of the Court.

Dated: May 20, 2009

_________________________________

ANTHONY J. FIORELLA, JR., JHC