211 E 46th Owners LLC v Mohabir

[*1] 211 E 46th Owners LLC v Mohabir 2011 NY Slip Op 52195(U) Decided on December 9, 2011 Civil Court Of The City Of New York, New York County Kraus, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 9, 2011
Civil Court of the City of New York, New York County

211 E 46th Owners LLC, Petitioner-Landlord

against

Bunny Mohabir 212 East 47th Street -Apt 20D New York, NY 10017, Respondent-Tenant



L & T 95207/2010



GUTMAN MINTZ BAKER & SONNENFELDT

Attorneys for Petitioner

By: Neal Sonnenfeldt, Esq.

813 Jericho Turnpike

New Hyde Park, NY 11040

(516) 775-6590

MICHAEL J. BERMAN

Attorney for Respondents

15 Maiden Lane

New York, NY 10038

(212) 528-1500

Sabrina B. Kraus, J.

BACKGROUND

This summary nonpayment proceeding was commenced by 211 E 46th OWNERS LLC (Petitioner) against BUNNY MOHABIR seeking possession of 212 East 47th Street, Apt 20D

New York, NY 10017 (Subject Premises) based on the allegation that Respondent, the rent-stabilized tenant of record had failed to pay rent due.

PROCEDURAL HISTORY

Petitioner issued a three day demand dated December 2, 2010 seeking $19,281.96 in arrears, for a period of April 2010 through December 2010, at a monthly rent of $2267.08. The petition issued December 16, 2010. Respondent appeared by counsel and filed an answer dated December 30, 2010. The proceeding was originally returnable on January 11, 2011.

The primary defense raised by Respondent is that the vent in the bathroom of the Subject Premises does not work, and that Petitioner has been on notice of the condition since at least October 2008. Respondent seeks a rent abatement based on said condition.

The Court ordered HPD to inspect the vent and the inspection took place on January 20, 2011, and resulted in two violations being issued, a Class B violation for the broken or defective [*2]mechanical vent in the bathroom, and a Class A violation for a missing cover.

On the next return date, February 14, 2011, the Court (Stanley, J) issued an order directing Petitioner to correct the violation and providing an access date. The order provided in pertinent part " As per the law, and so there is no misunderstanding, respondent is to allow petitioner to correct the condition as petitioner believes it should be corrected. Respondent cannot object to the correction of the condition until after it is completed." The proceeding was adjourned to March 16, 2011, pursuant to said order.

On March 16th, 2011, the proceeding was transferred to Part X for trial. However, later that day the parties entered into a stipulation adjourning the proceeding to May 11, 2011, for trial or settlement and agreeing to a reinspection of the bathroom vent by HPD on April 5, 2011, at which the parties and their counsel could be present. The stipulation further provided "If the reinspection finds that the supplemental bathroom fan that has been installed does not correct the 1/25/11 violation, landlord will remove it and take other action to correct. However, if the supplemental fan that has been installed needs further modification to correct the 1/25/11 violation, such as running the wiring behind the wall, landlord shall take such action as necessary to modify ...". Finally the stipulation provided "this is not an acknowledgment by the tenant that these are or are not viable solutions - resolutions of the violation."

Pursuant to the inspection request for the April 5, 2011 inspection Respondent asserted the following conditions: Bathroom vent was noisy when turned on; Bathroom vent exhausts backwards when turned off; Electrical Supply to Bathroom vent illegal, not to code; Building vent system for D Line bathrooms defective; and Building vent system for D line bathrooms not to code. The inspection resulted in one Class B violation to repair the broken or defective mechanical vent in the bathroom. The other conditions complained of resulted in no reported violation, but the inspector found that the fact that the vent exhausted backwards when the supplemental fan was turned off to be a continuing violation.

The proceeding was adjourned on several further occasions, with additional access dated being agreed to by the parties. A third inspection was ordered by the Court and took place on June 16, 2011. In the request for the inspection Respondent asserted the following conditions: The vent only exhausts when the light is on, otherwise blows into apt; Inspect vent fan for D Line bathrooms; ceiling holes/patches; closet next to bathroom has holes. The inspection report resulted in two violations for painting and plastering, but no violations were issued on the Vent Conditions alleged.

The proceeding was scheduled for trial on September 14, 2011 and was assigned to Part R for trial on said date. The trial did not commence and the proceeding was adjourned to November 15, 2011, pursuant to a stipulation . Respondent agreed to pay $8500.00 of arrears and on going use and occupancy without prejudice. The stipulation further provided "Landlord to replace bathroom vent fan with a fan that is quieter. This is not an admission by the landlord that the current fan is not up to code, nor an acknowledgment by Tenant that a new fan will meet code requirements."

On November 15, 2011, the parties' joint application for an adjournment was granted by the Court, and a final trial date was set for November 28, 2011. The trial commenced on November 28, 2011, and concluded on November 29, 2011. At the conclusion of trial, the Court reserved decision.

PRIOR PROCEEDINGS AND AGREEMENT

On September 24, 2008, the parties entered into an out of court agreement regarding rent [*3]and conditions in the Subject Premises (Exhibit E).[FN1] The agreement acknowledged that Respondent had written to Petitioner, pursuant to a letter dated December 18, 2007, complaining of conditions in the Subject Premises. Petitioner agreed to provide Respondent with a $10,000.00 prospective rent abatement. Petitioner agreed to make certain repairs and stipulated that the ventilation in the bathroom would be functioning by January 1, 2009.

After that agreement, there was a nonpayment proceeding between the parties under Index Number 93121/2009 (2009 Proceeding). Respondent's answer asserted breach of warranty of habitability and sought a rent abatement (Exhibit H). An inspection was ordered, and on January 4, 2010 a Class B violation was issued for the broken or defective bathroom vent (Exhibit I). The parties settled the proceeding pursuant to a stipulation on April 8, 2010 (Exhibit 8). Pursuant to the stipulation, Respondent paid $26,845.66 in arrears, and the landlord agreed to repair the bathroom vent as required by law. The stipulation further provided "Tenant shall pay April & May 10 rent by 5/10/10 if repair of vent has been made and vent continues to work as of 5/10/10." The stipulation further provided if payment was not made, Petitioner could move for a judgment for the unpaid sum, and that if the issue of the vent repair remained unresolved Respondent could move for "appropriate relief." The last paragraph of the stipulation provides "(t)his settles all claims between the parties to date and both sides waive fees and costs to date (Exhibit 8)." Neither party subsequently moved for any relief in the 2009 proceeding.

TRIAL

Petitioner purchased the Subject Building on January 11, 2006 (Exhibit 1). The Subject Building is a Class A building with 261 units on thirty-four floors (Exhibit 7). The Subject Premises is a one bedroom apartment on the 20th floor of the building in the D line.

At the commencement of trial, Respondent stipulated to Petitioner's prima facie case. The parties agreed there remained $8602.84 in unpaid arrears through November 2011. The parties stipulated a number of documents into evidence.

Respondent presented his claim for an abatement first. Respondent's first witness was Abas Shah. Mr. Shah was found by the Court to be qualified as an expert in Mechanical and Civil Engineering. Mr. Shah was retained by Respondent to inspect the bathroom vent. Mr. Shah testified that he inspected the Subject Premises, the hallway on the 20th floor of the Subject Building, and the roof of the building.

Mr. Shah went to the Subject Premises on four occasions, the first time being in June 2011. Mr. Shah testified that the building has a very common ventilation system. The first five floors of the building are used commercially, and floors 6 through 34 contain residential units. Mr. Shah testified that the building exhaust shafts go straight from the 6th floor to the roof. Mr. Shah testified that he examined the building department files and the initial offering plan for the building. Mr. Shah testified that the building was constructed around 1979, and that all of his research indicates that the design of the ventilation system was a very simple one.

The Subject Premises has two mechanical ventilation systems one in the bathroom and one in the kitchen. Mr. Shah testified that he examined the bathroom and the ventilation system for the bathroom in the Subject Premises. Mr. Shah testified he did not know whether any apartment in the D line had been modified, or if there had been alterations done in the Subject Premises. [*4]

Mr. Shah testified that he examined the roof of the building in July 2011, and that on top of the roof shaft is a properly designed roof exhaust fan. However on cross-examination, Mr. Shah acknowledged he never examined the rooftop fan and never had access to do so. Mr. Shah testified that if the ventilation system was operating properly, no supplemental exhaust fans would be necessary.

Mr. Shah testified that he examined the bathroom vent on all four occasions that he was at the Subject Premises. Mr. Shah testified that if the supplemental fan was off, a small amount of air was coming into the Subject Premises through the vent. Respondent put into evidence a photograph and brief video clip to illustrate the positive flow of air into the bathroom from the vent when the supplemental van is not on (Exhibit G). Mr. Shah testified that the positive flow of air into an apartment from the vent was a code violation.

Mr. Shah testified that he examined the label on the fan and determined that it was a Panasonic Fan. Mr. Shah printed the Supplementary Installation Instructions from an on line website which he asserted pertained to the supplemental fan installed in the bathroom (Exhibit F) .

Mr. Shah noted that the instructions provided that when the fan is installed over a bathtub or shower the unit should be installed in a ground fault circuit interrupter (GFCI) protected branch circuit. This is to insure that in the event of water or moisture penetration, the circuit breaker would be immediately tripped. Mr. Shah testified that the fan in Respondent's bathroom is not in a GFCI protected circuit. Mr. Shah testified that he verified this by conducting an experiment in the bathroom to see if the circuit would trip. Mr. Shah testified that a fan in a shower should have a GFCI protected circuit.

Mr. Shah testified that the initial ventilation system for the building met New York City and State Code requirements, and that it was improper to supplement the original system with add ons. Mr. Shah testified that the proper remedy for addressing the failure of the original system to vent from Respondent's bathroom would be to determine the cause of the ventilation failure and address it directly.

Mr. Shah testified that he had not investigated the current ventilation system to determine the cause of the malfunction, but essentially opined that the small amount of positive air flow into Respondent's bathroom when the fan is turned off is proof that there is a blockage in the system. Mr. Shah was not retained by Respondent to determine the cause of the problem.

Respondent testified next. Respondent testified that he moved into the Subject Premises approximately 20 years ago.

Respondent testified he first experienced a problem with the bathroom vent in 2007 when Respondent asserts it stopped working. Respondent testified that as a result of the condition he would experience unpleasant odors, and dust. Respondent chooses to work from home approximately three days per week, and states he has a prescription inhaler which he uses on occasion in the Subject Premises. Respondent also uses his inhaler when he works from his office, but testified he needs to use it less at the office than at home.

Respondent states that the first time Petitioner attempted to do any work to address the defect in the ventilation system was in February 2011. Respondent testified that he did not find the first fan installed by Petitioner to satisfactorily address the problem. Respondent testified that the fan was noisy, the dust and odors continued event when the fan was on and Respondent had concerns about the electrical connection for the fan.

Respondent testified that the noise from the first fan interfered with his ability to watch [*5]television in the Subject Premises. Respondent testified that Petitioner replaced the first fan with a quieter one, and addressed the wiring issue in June 2011. Respondent testified that he has concerns about the wiring on the second fan, but acknowledges the new fan is much quieter. Respondent testified that the primary impact the alleged defective ventilation has on him is that when there are odors he finds it embarrassing in front of guests.

Respondent testified that odors are not present every day but primarily occur in the evening. Respondent testified that the types of odors he typically smells at this time include the shampoo and perfume of his upstairs and downstairs neighbors.

Petitioner's first witness in rebuttal was Ifrain Pinkhasov. Mr. Pinkhasov has ten years experience as a mechanic for heating and air conditioning systems. Mr. Pinkhasov is licensed in the State of Connecticut and produced his license at trial. Mr. Pinkhasov is experienced on working on apartment buildings in New York City, and the ventilation systems for such buildings.Mr. Pinkhasov examined the first supplemental fan that Petitioner had installed in Respondent's bathroom. He observed that the fan was too noisy and replaced it with a much quieter fan. The replacement was done approximately one month prior to the trial.

Mr. Pinkhasov also went to the roof of the building and checked the exhaust fan on the roof to insure it was operating correctly. Mr. Pinkhasov also checked for blockage in the exhaust system, when he checked the fan on the roof and detected no blockage. Mr. Pinkhasov took the mushroom cap off of the rooftop fan to check for blockages. Mr. Pinkhasov turned off the fan and dismantled screws to be able to look inside the shaft. Mr. Pinkhasov testified that there was no main damper or time clock for this type of ventilation system.

Mr. Pinkhasov testified that the small amount of air flow back into the apartment, observed in Respondent's bathroom, after the installation of the new fan, is normal. Mr. Pinkhasov testified that one week prior to the trial, he had been back to the Subject Premises and detected no odors coming from the vent in Respondent's bathroom.

The next witness called by Petitioner was HPD Inspector Wayne Vespry. Inspector Vespry has been employed by HPD as an inspector for 8 years. Inspector Vespry testified that he has been trained in identifying code violations. Inspector Vespry had been subpoenaed to testify by Respondent, but was actually called as a witness by Petitioner.

Inspector Vespry went to the Subject Premises approximately six months prior to the trial. Inspector Vespry went to verify complaints about the vent in the kitchen and the bathroom of the Subject Premises. Inspector Vespry found no violation with the ventilation system in either room, and testified that it was operating properly at the time of the inspection.

Inspector Vespry testified that he tested the vent by placing a piece of tissue against the vent. If the vent is working the tissue will stick, and if the vent is not operating the tissue will fall to the ground. Inspector Vespry performed this test on both the vent in the kitchen and bathroom and found that both vents were operating properly. Inspector Vespry performed the test on the bathroom vent first. The light and supplemental fan were on when Inspector Vespry performed the test in the bathroom. Inspector Vespry testified that he did not inspect the fan on the roof, because the vents in the apartment proved operational. He testified that HPD policy is that the roof inspection would only take place if the vent in the apartment did not pas the initial test. Inspector Vespry testified that if the roof fan was not operating properly the vents in the kitchen and bathroom would not have been exhausting air.

The next witness called by Petitioner was Aron Weber a managing agent for the building. In the two years that Mr. Weber has been a managing agent for the building he has been to the [*6]Subject Premises on approximately five to six occasions. In the year 2011 Mr. Weber had been there on two or three occasions. Mr. Weber never experienced any problem with odor when he was at the Subject Premises.

DISCUSSION

It is well established that there was a problem with the vent the bathroom of the Subject Premises. Respondent complained of the problem as early as 2008 and violations for the vent were issued by HPD on January 4, 2010 (Exhibit I) , January 20, 2011 and April 5, 2011 (Exhibit A).

While the most recent inspection showed no violation, that was clearly because the supplemental fan was on at the time of the inspection. However, the supplemental fan only runs when the light switch to the bathroom is turned on. Based on Inspector Vespry's testimony, if he had performed the test with the light switch off, and the supplemental fan was not running, the tissue would have fallen to the floor and a violation would have been issued.

Article 3, Title 3, Section 76 Part J of the New York State Multiple Dwelling law provides that a bathroom without a window must have a system of ventilation which "shall be maintained and operated continuously to provide at least four changes per hour of air volume from six am through midnight." As the only action taken by Petitioner to address the previous violation for the bathroom vent was the installation of a supplemental fan, the Court must conclude that when the supplemental fan is not on, the positive air flow into the apartment evidences a violation.

Moreover, it is not reasonable to assume that Respondent is intended to keep his bathroom light switched on from 6 am through midnight to meet code requirements. Therefore the Court concludes that Petitioner has failed to correct the three violations previously issued for defective ventilation, by the installation of the supplemental fan.

The Court does not credit the testimony of Respondent or Mr. Shah regarding any alleged defects in the electrical wiring of the supplemental fan currently installed. The Court notes that Mr. Shah has no expertise as an electrician, and relied almost entirely on the instruction manual (Exhibit F) for his conclusion that the fan requires a GFIC protected circuit. The Court notes that the instruction provide for installation of the fan either over the shower in the ceiling, or on the wall. The fan in Respondent's bathroom is not on the ceiling but is on the wall (Exhibit 9 ). The portion of the instructions referencing GFCI protection refers only to fans installed over the bathtub or shower in the ceiling, and would not seem to be required for the fan as installed in Respondent's bathroom. This is confirmed by the lack of reported violation for the wiring, despite

Respondent's numerous complaints to HPD and other agencies regarding the alleged condition.

§ 235 of the RPL codifies the warranty of habitability and provides that a residential apartment which is leased shall be "... 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 and safety."

Notwithstanding the foregoing conclusion that there remains a defect in the ventilation system to be addressed by Petitioner, the Court finds that Respondent has failed to establish an entitlement to a substantial rent abatement in this proceeding. (A) landlord is not a guarantor of every amenity customarily rendered in the landlord-tenant relationship. The warranty of habitability was not legislatively engrafted into residential leases for the purpose of rendering landlords absolute insurers of services [*7]which do not affect habitability.

... ... a simple finding that conditions on the lease premises are in violation of an applicable housing code does not necessarily constitute automatic breach of the warranty. ... (O)nce a code violation has been shown, the parties must come forward with evidence concerning the extensiveness of the breach, the manner on which it impacted upon the health, safety or welfare of the tenants and the measures taken by the landlord to alleviate the violation .

(Park West Management Corp. v Mitchell 47 NY2d 316, 327-328).

While Petitioner should have taken corrective measures prior to January 2011, it is clear that from January 2011 forward, Petitioner attempted in a diligent and reasonable manner to correct the violation. Moreover, Respondent offered no evidence to the Court either as to the cause of the underlying defect nor the correct way in which to correct. This despite the fact that Respondent hired an expert to examine the vent, who physically examined it on at least four occasions, in addition to extensively researching the system through DOB and related documents.

"If, in the eyes of a reasonable person, defects in the dwelling deprive the tenant of those essential functions which a residence is expected to provide, a breach of the warranty of habitability has occurred (Id at 328)." There is precedence for holding that improper ventilation can serve as the basis for a breach of warranty of habitability claim (see eg Sommer v Hyman 126 Misc 2d 903; Sutton Fifty-Six Co. v. Garrison 93AD2d 720 ). However, in most cases where an abatement was awarded the issue of ventilation was linked to other issues such as deprivation of light and air, or a building wide system deficiency.

In this proceeding, Respondent provided no evidence that the defect in the vent substantially affects his use or enjoyment of the Subject Premises, or that it created a hazardous condition. Respondent elects to work from the Subject Premises rather than from his office several days a week. Respondent's conclusory allegations that he was affected by the dust or odor were not borne out in any detail nor were they corroborated by any documentary evidence or testimony from any other witnesses. Respondent's testimony that he was embarrassed by the occasional odors or that he was able to identify the shampoo or perfume used by a neighbor is not a sufficient disturbance to warranto a rent abatement. Additionally, while the supplemental fan may still technically be in violation of the legal requirements to the extent that Respondent is disturbed at any time any an odor he can activate the fan and promptly eliminate same.

While there were other conditions found during the relevant period at the Subject Premises there was absolutely no testimony by Respondent regarding any impact any other condition had on his use and enjoyment of the Subject Premises. Moreover, the Court notes that Respondent received a $10,000.00 rent abatement from the landlord in the fall of 2008 (Exhibit E) and waived all claims for an abatement through April 8, 2010, pursuant to the stipulation of settlement in the 2009 proceeding (Exhibit 8 paragraph 6).

In ascertaining damages on a breach of warranty claim the Court must consider "... the severity of the violation and duration of the conditions giving rise to the breach as well as the effectiveness of the steps by the landlord to abate those conditions (id at 330)."

In this proceeding Petitioner offered no evidence of actions taken from April 2010 through January 2011 to address the violations for the vent. Thus even absent substantial [*8]evidence by respondent as to the impact opf the violation on his use of the Subject Premises, the Court finds that Respondent is entitled to a 5% abatement for the period from April 2010 through January 2011 based on Petitioner's failure to takes steps during that period to address the class B violation issued by HPD. The abatement amounts to a total of $1133.54 for the period.

Based on the foregoing Court awards Petitioner a final judgment in the amount of $7469.30 for arrears due through November 2011. Issuance of the warrant is stayed five days for payment of same.

Petitioner is directed to make the vent system in Respondent's bathroom code complaint within 60 days of the date of this order.

This constitutes the decision and order of the Court.

___________________________

SABRINA B. KRAUS

Dated: New York, New York

December 9, 2011 Footnotes

Footnote 1: Although the agreement was put into evidence by Respondent, paragraph 17 of the agreement provided that it was to be confidential and only disclosed pursuant to court order or subpoena.