Olszewski v Neuman
Annotate this CaseDecided on June 24, 2011
District Court of Nassau County, First District
Frank Olszewski and Jessica L. LaRocco, Plaintiffs
against
Marvin Neuman, Defendant
SC 3226/10
Pro Se Plaintiffs
Pro Se Defendant
Helen Voutsinas, J.
DECISION AFTER TRIAL
The plaintiffs and tenants, Frank Olszweski and Jessica L.LaRocco, are suing for the return of their security deposit in the amount of $2,100. The plaintiffs entered into a one year written lease with the defendant commencing on May 1, 2010, with a monthly rent of $1,400 and security deposit in the amount of $2,100. The plaintiffs vacated the premises on October 30, 2010, before the expiration of the term of their lease. The defendant claims the plaintiffs are not entitled to the return of their security deposit because the plaintiffs breached the lease. The plaintiffs are claiming they were constructively evicted due to lack of heat, unsanitary conditions and noise caused by the other tenant in the building. The plaintiffs allege that the defendant did not provide them with quiet enjoyment and habitability of the premises.
Based on the credible evidence presented at trial, the court determines the following:
The tenants took possession of the premises on May 1, 2010, for one year. The plaintiffs tendered a check to the defendant on April 19, 2010, in the amount of $3,500, which included a security deposit in the amount of $2,100 and one month's rent in the amount of $1,400. The plaintiff rented an apartment in a legal two family house located at 525 Ocean Point Avenue, Cedarhurst, New York (hereinafter "premises")
Paragraph eight of the lease states that the tenant is financially responsible for the payment of electric, telephone and cable. The plaintiffs believed they were renting a unit with a separate heating zone. After moving in, the plaintiffs discovered that the thermostat was not working properly and they were without heat. In May of 2010 the plaintiffs notified the defendant of the issue.
The defendant represented that the plaintiffs had a right of quiet enjoyment in paragraph ten of their lease.
Some time after the plaintiffs moved in, new tenants moved into the other unit in the building. The plaintiffs state that the other tenants caused conditions as to disturb their right to quiet enjoyment.
A review of the transcript of text messages produced at trial, reveal that beginning in [*2]July of 2010 the plaintiffs complained to the defendant of: trash in the yard causing odor and insect infestation, crowding of vehicles and unregistered vehicles, littering, dog feces all over the yard, overcrowding and continual noise.
On August 18, 2010, the plaintiffs requested that the thermostat be repaired. On August 25, 2010, the defendant stated that the plumber was going to repair the thermostat. The plumber was scheduled to repair the thermostat some time in early September of 2010. (See plaintiff's Exhibit 6) The defendant never repaired the heating in September of 2010.
On September 22, 2010, the plaintiffs complains of the lack of heat, unsanitary living conditions in the common areas and overcrowding in the adjacent unit.
On September 28, 2010, the defendant responded via text message stating that heat was not necessary in the summer months and acknowledged that the boiler connecter had not been attached.
On October 4, 2010, the parties met. The plaintiffs advised the defendant they were vacating the premises and presented an agreement to the defendant to break the lease. The defendant refused to sign the agreement.
The plaintiffs advised the defendant that they were vacating the premises by letter dated October 15, 2010.They stated that they would vacate and relinquish possession of the premises effective October 30, 2010, due to the lack of heat and other living conditions. The plaintiffs attempted to secure a time and place to surrender the keys to the premises, by letter dated October 23, 2010.
The plaintiffs advised the defendant by letter dated October 30, 2010, that they were including the keys and photographs of the premises in the mail. They also demanded their $2,100 security deposit and provided a forwarding address. The plaintiffs moved out of the apartment on October 30, 2010.
At trial, the plaintiffs produced a letter from the Village of Cedarhurst stating that on October 20, 2010, the Village performed an inspection of the boiler. The letter confirmed that the heat was not working and that the Village called the defendant to repair the heating. The defendant represented to the Village that the heat was repaired that day.
The plaintiffs allege that the defendant agreed to permit them to break their lease through constructive eviction.
The defendant alleges that he never agreed to break of the lease. He states that he performed his obligation under the contract. He further states that he was not required to provide heat during the months of May to October. The defendant also claims that the conditions created by the adjoining tenant were not sufficient to rise to the level of a disruption of the plaintiffs' quiet enjoyment.
A residential lease is a sale of both shelter and services by a landlord. Park West Management Corp. v. Mitchell, 47 NY2d 316 (1979). When a landlord contracts to lease a property, the landlord impliedly warrants: first, that the premises are fit for human habitation; second, that the condition of the premises is in accord with the uses reasonably intended by the parties; and, third, that the tenants are not subjected to any conditions endangering or detrimental to their life, health or safety. Park West Management Corp. v. Mitchell, 47 NY2d 316 (1979).
A landlord can breach these implied warranties by depriving a tenant the quiet enjoyment of the apartment. To establish a breach of the covenant of quiet enjoyment, a tenant must show either an actual or constructive eviction. Grammar v. Turits, 706 N.Y.S.2d 455-56 (2d Dep't 2000). An actual eviction occurs when a tenant is physically ousted from his apartment. A [*3]constructive eviction occurs when a landlord's wrongful acts substantially and materially deprive a tenant of the intended beneficial use and enjoyment of the leased premises. Id. at 455-56.
The Nassau County Public Health Ordinance requires that heat be provided from October 1st through May 31st. During this period, the required minimum temperature is 65 F between 10PM and 6 AM (overnight) and 68 F between 6AM and 10PM (during the day). A tenant is justified in vacating the premises if he/she was deprived of heat for an unreasonable time. Berlinger v. MacDonald ,149AD 5,(1st Dept. 1912)
This Court finds that based on the facts at trial their was insufficient evidence to support a claim of lack of quiet enjoyment created by the adjoining tenants. Furthermore, this Court finds that the defendant was not required to provide heat during the months of May to September. However, the landlord failed to provide heat during the month of October.This Court further finds that the failure to furnish heat was due to a defect in the connection of the boiler, which required it to be repaired by the landlord. The landlord was entitled to reasonable time to remedy the defect. Although the defendant had no duty to provide heat during the summer months, he had the opportunity to repair the defect within a reasonable time before the heating season began.Once the month of October commenced, the defendant was obligated to supply heat to the tenant if the temperature fell below normal standards. Albeit, the landlord was not required to provide heat during the summer months, the tenants continued to complain to the landlord. It was not until the Village of Cedarhurst performed an inspection on October 20th, that the heating was repaired. However, at that point the plaintiffs had secured other housing. This Court finds it is unreasonable to expect the plaintiffs to remain in the premises with the winter season upon them and during the month of October, after having made numerous complaints to the landlord without any response. Based on the credible evidence and in the interest of substantial justice, this Court finds that the tenants were constructively evicted.
As such they are entitled to the return of their security deposit.
Accordingly, this Court finds for the plaintiffs.
The foregoing constitutes the decision and order of this court.
Date:Hempstead, New York
June 24, 2011
____________________________
Helen Voutsinas
J.D.C.
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