88 Seaman Ave. LLC v Fourtuna

[*1] 88 Seaman Ave. LLC v Fourtuna 2015 NY Slip Op 50571(U) Decided on April 22, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 22, 2015
Civil Court of the City of New York, New York County

88 Seaman Avenue LLC, Petitioners-Landlord

against

Jose Fourtuna and ROSE AGUERO 88 Seaman Avenue, Apt. 1E New York, NY 10034, Respondents-Tenants ROSA DIAZ Respondent-Undertenant.



L & T 83982/14



Attorney for Petitioner

271 North Avenue, Suite 115

New Rochelle, NY 10801

JOSE FOURTUNA, ROSE AGUERO and ROSA DIAZ

Respondents Pro Se

88 Seaman Avenue, Apt. 1E

New York, NY 10034
Sabrina B. Kraus, J.

BACKGROUND

This summary nonpayment proceeding was commenced by 88 SEAMAN AVENUE LLC (Petitioner) and seeks to recover possession of APARTMENT 1E at 88 SEAMAN AVENUE, NEW YORK, NY 10034 (Subject Premises) based on the allegation that JOSE FOURTUNA (Fortuna) and ROSE AGUERO (Aguero), the rent-stabilized tenants of record, had failed to pay rent for the Subject Premises. Aguero has never appeared. ROSA DIAZ (Diaz) is married to Fortuna, and was added as a respondent-undertenant, on consent, at the commencement of the trial. PROCEDURAL HISTORY

Petitioner issued a Five Day Rent Demand dated October 23, 2014, seeking $5,896.39 in [*2]arrears for the period of June 2014 through October 2014 at a monthly rent of $1,448.89. The Notice of Petition issued November 7, 2014, and the proceeding was initially returnable December 23, 2014.

Fortuna filed an answer on December 16, 2014, asserting a general denial, improper service and breach of warranty of habitability.

On December 23, 2014, the parties agreed by stipulation: to a trial date of February 23, 2015; that respondents' lease was due to expire on December 31, 2014 and respondents intended to move out; amending respondents' answer to include a claim of constructive eviction; and wherein respondents waived traverse.

On February 23, 2015, the proceeding was assigned to Part R for trial. The trial commenced and concluded on that day, and the court reserved decision.

On March 13, 2015, Fortuna's motion to enlarge the record to include a ECB violation issued September 23, 2014, and a DHCR rent reduction order issued August 7, 2014, was granted on consent.

FINDINGS OF FACT

Petitioner is the owner of the Subject Premises pursuant to a deed dated June 1, 2009 (Ex 1). There is a valid MDR for the Subject Premises for a period through and including September 1, 2015 (Ex 2).

Fortuna and Aguero are the rent-stabilized tenants of record, pursuant to a lease most recently renewed in December 2013, for a period through and including December 31, 2014 (Ex 5). The legal registered rent is $1448.89 per month (Ex 3).

Respondents have not paid rent for the period of August 2014 through January 2015. Rent was paid for February 2015, and Petitioner seeks $11,713.83 in arrears through January 2015.

On February 3, 2012, a pipe burst in the wall above the Subject Premises, causing water to cascade from the ceiling of the living room and bedroom. The electrical outlets were saturated with water and there was damage to a large portion of the ceiling and floors in the Subject Premises. Pictures of the damage were submitted into evidence (Exs E1-15, F28,29,39). Respondents contacted Cynthia, a managing agent for Petitioner, who oversaw repairs, which were completed within the same month. However, within two to three weeks leaks reoccurred. Fortuna left numerous messages with Petitioner's answering service regarding the new leaks and reported the conditions to 311, however there was no response from Petitioner.

In July 2012, another flood caused the living room ceiling to collapse, and damaged the

ceiling outside the master bedroom. Petitioner immediately responded to do repairs over a sixteen day period in July and August 2012. The leaking reoccurred again approximately one week later and continued through August 2014.

Department of Buildings issued an ECB violation related to the repairs done in the summer of 2012, on September 23, 2014, finding that the work was done without a permit and that the "wood frame drop ceiling installed" needed to be restored to the prior legal condition (Ct. 1).

In early February 2014, Con Edison shut the gas to the entire building, including the

Subject Premises, and gas was not restored until January 2015. In August 2014, Cynthia asked for access to the Subject Premises to repair the gas line. Cynthia told Respondents the repair would take no more than one week. Respondents gave access by giving a copy of the keys to Subject Premises to the Super and leaving the Subject Premises to allow the work to be done. [*3]Work began in August 2014. Respondents returned to the Subject Premises approximately three to four days after the repairs began, and were shocked to find that the walls inside the Subject Premises had been torn down, there was no toilet and much of their belongings had been moved (Ex F2-20).

At that point, due to the hazardous condition of the premises, Respondents took additional belongings, and went to live with Fortuna's mother. Over the next several months, Fortuna returned to the Subject Premises to check on the progress of the repairs, and on a few occasions took pictures of the status of the Subject Premises.

Fortuna emailed Cynthia in September 2014 (Ex A) listing a number of conditions that still remained in the Subject Premises including the persistent water leaks, damage to the ceiling, walls and floors from the flooding, broken intercom, rat infestation and broken refrigerator. HPD issued numerous violations that same month and earlier for the following conditions: broken bell/buzzer, lead based paint, missing smoke and carbon monoxide detectors, missing window guards, damaged walls, ceilings and floors, and water leaks (Ex B).

The Subject Building is in HPD's AEP Program. [FN1]

As of late December 2014, the Subject Premises was still not habitable, the walls were still open, the debris was not cleaned up, electrical wires were exposed and construction materials were strewn about. These conditions are depicted in photographs (Ex.F1,21-27,30-38,40). However by mid January 2015, the work was completed (Ex. G1-3,5-8).

Although the work was completed in January 2015, and respondents were aware of this fact, respondents did not return to live in the Subject Premises as of the trial date. Respondents stated this was because they were confused as to their status, based on the expiration of their lease and the pending litigation. Fortuna testified that notwithstanding the December 2014 stipulation stating respondents intended to surrender the Subject Premises, respondents changed their mind and wished to maintain their tenancy.

Respondents seek no abatement for any period prior to June 2014, and only began to withhold rent in August 2014.

DHCR issued a Rent Reduction Order for the lack of gas supply on August 7, 2014 (Ct.2) which was effective June 1, 2014.

DISCUSSION

In order to establish a constructive eviction defense, respondents must establish a wrongful act by Petitioner which substantially and materially deprived them of the beneficial use and enjoyment of the Subject Premises, and respondents must have actually abandoned [*4]possession of all or part of the Subject Premises (Barash v. Pennsylvania Terminal Real Estate Corp. 26 NY2d 77).

Respondents were constructively evicted from the Subject Premises from mid August 2014 through mid January 2015. During that time, electrical wires were exposed, walls were torn down and there was no toilet in the apartment. Respondents have three young children living in the Subject Premises. The Subject Premises was not safe for occupancy during this period, based on Petitioner's acts, and respondents did actually abandon the Subject Premises during this period.

Pursuant to RPL § 235-b(3)( c) any rent abatement for lack of gas must be off set by the rent reduction order issued by DHCR [Baumrind v Valentine 2002 NY Slip Op 50137(U)]. The court does not find any further abatement is warranted for the lack of gas beyond the amount awarded in the DHCR rent reduction order for June through mid-August 2014.

Based on the DHCR rent reduction order, the maximum collectible rent for June 2014 forward is $1393.16. This was the legal rent in effect prior to the reduction order (Ex 3). The total amount of unpaid rent from June 2014 through January 2015, after crediting four months for the constructive eviction, and the payments totaling $2904.89 made in June and July 2014, is $2660.64.

Real Property Law § 235-b requires landlords of a residential premises to make repairs and to keep the premises free from conditions that are dangerous or detrimental to the life health or safety of the tenants and occupants residing in the premises (Park West Management Corp. v. Mitchell, 47 NY2d 316). If there is a breach of the warranty of habitability, the tenant may be awarded damages in the form of a rent abatement. In determining the amount of the abatement, "the finder of fact must weigh the severity of the violation and duration of the conditions giving rise to the breach, as well as the effectiveness of steps taken by the landlord to abate those conditions (Id at p.329)."

The Court awards a thirty percent abatement for June, July and half of August rent in the amount of $1044.87. This abatement covers the conditions that existed in the Subject Premises during that time, as evidenced by the HPD violations and respondents' credible testimony.

Based on the foregoing the Court awards Petitioner a final judgment in the amount of $1675.77 for all arrears due through January 2015 as against Fortuna. A judgment of possession only is awarded as against Diaz, and a judgment of possession on default as against Aguero. Issuance of the warrant is stayed five days for payment.

This constitutes the decision and order of this Court.[FN2]

Dated: New York, New York

April 22, 2015____________________

Sabrina B. Kraus, JHC

TO:TODD ROTHENBERG, Esq. Footnotes

Footnote 1:On or about January 31st of each year, HPD designates 200 severely distressed multiple dwellings for participation in the Alternative Enforcement Program (AEP). Selection criteria include the number of class "B" hazardous and class "C" immediately hazardous housing maintenance code violations and the dollar value of emergency repair charges incurred as a result of the work performed by HPD.

Footnote 2:Parties may pick up their trial exhibits from Window 9 on the second floor, in the clerk's office within thirty days. After thirty days, the documents may be disposed of in accordance with administrative directives.