86 Clinton, LLC v Kristie

[*1] 86 Clinton, LLC v Kristie 2014 NY Slip Op 51533(U) Decided on October 23, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 23, 2014
Civil Court of the City of New York, New York County

86 Clinton, LLC, Petitioner-Landlord

against

Linda Kristie, 86 Clinton Street, Apt. 8 New York, NY 10002, Respondent-Tenant.



L & T 63809/2014



LAWRENCE J. SILBERMAN, ESQ.

Attorney for Petitioner

146 East 37th Street

Brooklyn, NY 10016

LINDA KRISTIE

Respondent Pro Se

86 Clinton Street, Apartment 8

New York, NY 10002
Sabrina B. Kraus, J.

BACKGROUND

This summary nonpayment proceeding was commenced by 86 CLINTON, LLC

(Petitioner) and seeks to recover possession of 86 Clinton Street, Apt. 8, New York, NY 10002 (Subject Premises) based on the allegation that LINDA KRISTIE (Respondent) the rent stabilized tenant of record, had failed to pay rent due for the Subject Premises.

PROCEDURAL HISTORY

Petitioner issued a three day notice dated April 16, 2014, seeking $1,102.70 per month for March and April 2014, in addition to late fees and legal fees. The demand sought payment on or before April 29, 2014. The petition is dated May 1, 2014, and seeks the same amount of [*2]arrears.

Respondent appeared pro se and filed an answer on June 6, 2014. The answer assented that Respondent didn't receive the Notice of Petition and Petition, that Respondent had tendered rent that Petitioner refused to accept, that Petitioner had made the necessary repairs in the Subject Premises but failed to do so in a timely manner, a general denial, harassment, and a counterclaim for $1000.00.

The proceeding was initially returnable, June 3, 2014.

On July 11, 2014, the court (Spears, J) issued an order adjourning the proceeding to July 31, 2014 at 9:30 am for trial. The order further directed Respondent to deposit five months rent totaling $5,513.50 on or before July 18, 2014, and found that no traverse hearing was required.

On July 18, 2014, Respondent deposited the required amount in court.

On July 31, 2014, Respondent moved for an order permitting her to amend her answer to assert a claim for warranty of habitability. The motion was granted, without opposition, by the court, on the return date. The file contains a handwritten answer dated July 22, 2014, which asserts breach of warranty of habitability as a counterclaim, and seeks $1,000. 00 in damages for same.

On August 15, 2014, the proceeding was assigned to Part L for trial. The trial commenced and was adjourned to October 15, 2014, when the trial concluded. The Court reserved decision.

RELATED PROCEEDINGS

The court takes judicial notice of the following related proceedings between the parties.

Index Number 78655/2013 was a prior holdover proceeding between the parties based on the allegation that Respondent had a dog in violation of her lease, and that said dog was creating a nuisance. Respondent was represented by counsel in said proceeding which was originally returnable before the court in September 2013.

Respondent moved for an order dismissing the proceeding ion December 12, 2013. The motion was granted by the court (Spears, J) on March 13, 2014, based on the court's finding that the predicate notice was defective.

Index Number 174/2014 is an HP proceeding commenced by Respondent in February 2013. The proceeding resulted in two Class "A" and six Class "B" violations being placed on the Subject Premises, for conditions including painting and plastering, replacing a defective wood base cabinet under the kitchen sink, a water leak in the ceiling of the bathroom, roach infestation, a missing smoke detector and carbon monoxide detector, and defective wooden flooring. These violations were issued on February 8, 2014.

On March 14, 2014, the parties entered a stipulation of settlement, wherein Petitioner agreed to correct the violations within thirty days, and to provide Respondent with a working refrigerator.

On May 8, 2014, Respondent moved for a compliance hearing alleging that Petitioner had not made the repairs. The motion was adjourned on two dates, for opposition, interim access, and an update on repairs. On May 15, 2014, Petitioner submitted an affidavit in opposition from Daniel Conway (Conway) asserted that Respondent granted access on the first two dates set in the consent order, but only for a "limited period" and then refused a request by Petitioner for a third access date. All violations had nonetheless been corrected except for the replacement of the kitchen cabinet and the refrigerator. Conway asserted that Petitioner was ready willing and able to install these if Respondent would agree to access.

By May 27, 2014, the Court granted the motion to the extent of finding that the only remaining issue between the parties was the refrigerator. Petitioner had bought a brand new refrigerator for Respondent which Respondent rejected, Petitioner agreed to provide Respondent with a second brand new refrigerator and did so within days.

There was also a harassment proceeding instituted by Respondent against Petitioner in April 2014 under Index Number 520/2014. The proceeding was dismissed by this Court pursuant a decision and order on July 9, 2014, based on the fact that Respondent was not prepared for trial and did not appear to have asserted a cause of action.

There is also currently pending a holdover proceeding under Index Number 74176/2014 based on allegations of nuisance related to the manner in which Respondent maintains her pets, failure to provide access, and related claims. Petitioner issued a notice of termination on July 17, 2014, terminating Respondent's tenancy effective August 9, 2014. That proceeding was initially returnable in August 2014 and is currently pending.

Finally there is an action in Supreme Court, New York County, commenced by Petitioner for access under Index Number 650379/2014. Certain pleadings and papers from said action were admitted into evidence by the Court at trial of this proceeding (Ex aa). In the context of said action, Justice Engoron issued an order on February 10, 2014 directing Respondent to allow access to the Subject Premises to Petitioner for repairs to a broken steam riser, and further enjoing Respondent from allowing her pets "... from urinating on floors, walls, pipe etc ... (Ex 9)."

FINDINGS OF FACT

There is unpaid rent from March 2014 through August 2014, however, Petitioner made no motion at trial to amend the petition to date. Thus Petitioner shall be limited to the claim asserted in the petition for $2205.40 for March and April 2014 [NYCHA v Sinclair 21 Misc 3d 133(A)(App Term, 2nd Dept)(reversible error for trial court sua sponte to amend the petition to conform to the proof absent a specific motion for said relief)].

Petitioner is the owner of the subject building pursuant to a deed dated February 21, 2013 (Ex 1). There is a valid multiple dwelling registration for the Subject Premises (Ex 2). Respondent is the rent stabilized tenant of record, pursuant to an lease most recently renewed for a period through and including April 30, 2015 (Ex 4).

The legal registered rent for the Subject Premises is $1102.70 per month as of May 27, 2014 (Ex. 3). Petitioner offered no explanation as to why on May 27, 2014, it registered the lower rent from the expired lease, rather then the higher rent on the subsequent renewal. The prior renewal lease expired on April 30, 2014 (Ex 3), and the renewal was executed by Respondent on March 18, 2014, two months prior to Petitioner registering the rent at the lower amount. Although Shazad Ali (Ali) did testify that the 2015 registration had not yet been filed and would be filed in April 2015 reflecting the higher rental. However, given the lack of a motion to amend the petition to date, the discrepancy is irrelevant because the higher amount did not kick in until May 2014, which is not sought in the petition.[FN1]

Most of the trial focused on the issue of Respondent's claim for breach of warranty of habitability. Respondent sought an abatement for the period of June 2013 through May 2014. Respondent failed to establish the right to a rent abatement. Respondent to lack credibility as a witness.

Respondent acknowledged that she gave Petitioner no written notice of any alleged conditions in the Subject Premises. Respondent asserted that she gave Petitioner "notice" of repairs in June 2013 when she mentioned something to an insurance inspector, and in October 2013 when Petitioner had repairs done in the Subject Premises. The court finds that no notice was provided to Petitioner of an specific condition in June 2013.

On or about October 11, 2013, Respondent without any prior notification to Petitioner of a needed repair filed a complaint with HPD alleging a leak from the flushing apparatus of the toilet in the bathroom (Ex Q). Ali first met Respondent when he came to fix the problem immediately after receiving notification of the HPD complaint. The repair was addresssed on that same day.

This was the first time Ali met Respondent or was inside the Subject Premises. Ali credibly testified that when he came to repair the toilet, he stepped into a mat by the entrance that was saturated and pouring out animal urine and that the Subject Premises smelled from the urine. At that time, Respondent maintained two cats and a dog in the Subject Premises. Respondent showed Ali the toilet tank and Ali fixed it the same day. At the time, Ali noted that the Subject Premises had been poorly maintained by Respondent. Specifically, Ali noted that the bathtub was filled with dirty dishes and other foul smelling debris, the bed was being used for storage and as a sleeping area for Respondent's pets, and the kitchen cabinet under the sink had the door removed and was being used as a location for the litter box for the cats. The floor was damp with animal urine and the entire premises reeked from that odor.

The next notice Petitioner had regarding any request for repairs was in February 2014 pursuant to the HP proceeding commenced by Respondent. The court finds that Petitioner did the repairs as soon as Respondent provided access and went beyond just addressing the violations issued by the inspector but also agreeing to address any conditions of concern to Respondent even though they were not found to be violations. For example Petitioner purchased not one, but two new refrigerators, until Respondent was satisfied, and even though no violation for any defect with the refrigerator had been found by the inspector.

Respondent continued to fail to provide access or make access difficult for Petitioner, but by May 2014, all work had been done and no further requests for repairs were raised by Respondent.

Respondent intentionally refused to provide access to Petitioner to effectuate repairs.

Additionally, Respondent maintained her animals in a manner that caused damages to the Subject Premises necessitating some of the repairs. In June 2013, Petitioner installed a working smoke detector in the Subject Premises, which Respondent acknowledged she intentionally disabled resulting in a subsequent violation being issued in the HP proceeding referenced above.

The testimony of Petitioner's witnesses regarding the conditions created by Respondent

in the Subject Premises is further supported by a June 20, 2014 Order of the Commissioner from the New York City Department of Health and Mental Hygiene finding that on June 18, 2014 an inspector went to the bui8lding a from 1pm for approximately 30 minutes and determined that on the third floor outside the Subject Premises there was a foul odor (Ex 13). The conditions are [*3]also reflected in phonographs admitted into evidence by Petitioner as (Exs 10 a, b, d, e, f, g, h). These photographs show the Subject Premises is maintained by Respondent in a Colliers like condition, extremely cluttered and include a depiction of dirty dishes pots and pans and dirt and garbage in the bathtub.

DISCUSSION

New York Real Property Law §235-b (1) provides:

In every written or oral lease or rental agreement for residential premises the landlord or lessor shall be deemed to covenant and warrant that the premises so leased or rented and all areas used in connection therewith in common with other tenants or residents are 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 or safety. When any such condition has been caused by the misconduct of the tenant or lessee or persons under his direction or control, it shall not constitute a breach of such covenants and warranties (emphasis added).

The court finds that many of the violations issued in the HP proceeding were for conditions caused by Respondent including the violations for the defective woodbase cabinet in the kitchen sink, for which Respondent removed the door and used it as a place for her cats to urinate, the violation for roaches, which the court finds was caused wholly or in part by the unsanitary condition in which Respondent maintains the Subject Premises, the violation for the smoke detector which Respondent admitted to dismantling after July 2013, and the violation for damaged wood flooring which was caused wholly or in part by Respondent allowing her animals to urinate on the floor. As such Respondent is not entitled to any abatement for these conditions.

Additionally, Respondent's refusal to provide reasonable access to Petitioner and her efforts to impede Petitioner from gaining access also weigh against awarding Respondent any abatement for this period [Fifty Seven Associates, LP v Feinman 30 Misc 3d 141(A)].

CONCLUSION

Based on the foregoing Respondent's defense and counterclaim for a rent abatement for the period of June 2013 through May 2014 is dismissed with prejudice. Petitioner is entitled to $2205.40 for all rent due through April 2014 and is awarded a final judgment of money and possession for same. There is currently on deposit with the court $5,513.50. The clerk of the court is directed to release $2205.40 of said sum to the Petitioner, and the balance to the Respondent.

This constitutes the decision and order of this court [FN2]

Dated: New York, New York

October 23, 2014

Hon. Sabrina B. Kraus Footnotes

Footnote 1:This defect in Petitioner's case is particularly perplexing in light of the fact that on October 15, 2013, a prior non payment proceeding was previously dismissed by Judge Stoller under Index Number 73869/2013 for exactly the same reason. Ali testified at the trial in this proceeding that he had no knowledge of any prior nonpayment proceedings against Respondent.

Footnote 2:Parties may pick up their exhibits from Window 9 in the clerk's office on the second floor within 30 days of the date of this decision. After said date the documents may be destroyed in accordance with administrative directives.