Bonham Strand LLC v King
Annotate this CaseDecided on December 14, 2023
Justice Court of the Village of Dobbs Ferry, Westchester County
Bonham Strand LLC, Petitioner-Landlord,
against
Tyler E. King and TANA DEAN KULDRAREE, Respondents-Tenants.
Index No. 23100053
David A. Koenigsberg, J.
Petitioner commenced this non-payment eviction proceeding against Respondents, seeking a money judgment in the amount of $4,619.50 for rent in arrears, late fees, "service call to remove squirrel $40" and "Certified Mailing $12." Respondents leased Apt. 2N, 2 Main Street, Dobbs Ferry, NY, from November 15, 2022 until October 31, 2023.
Respondents answered and asserted defenses that they were not properly served with notice as required by RPL § 235-e(d), Petitioner has overcharged rent, that the bedroom was unusable after a partial ceiling collapse, the presence of black mold in the bathroom, shower, and rodents living in the walls, none of which Petitioner repaired. Respondents counterclaimed for $2,599 for rent overcharges, and demand return of the $2,175 security deposit.
A summary trial hearing was held on December 7, 2023. Dickon Tong, President of Petitioner testified for Petitioner and Tyler King testified for Respondents.
The following documents were introduced into evidence:
Petitioner's Exhibits: 1: Lease; 2: Summary of damages; 3: Photographs, 11 pp. (pp. 6 and 8 not admitted); 3B: Reply to Answer; 4: Invoice, Marx Exterminating; 5: Incident Reports, 08/16/2023, Dobbs Ferry Police Department and Fire Department (2 pages); 6: Text messages re squirrels, 2/17/2023 (1 p.); 7: Emails 9/19/2023 (1 p.); 8: Photographs of ceiling damage (2 pp.).
Respondents' Exhibits: A: Renewal Lease Form, 10/03/2023: B: State of New York, Division of Housing and Community Renewal, Apartment Information, Apt. 2N, 2 Main Street, Dobbs Ferry, NY 10522, 9/06/2023, page 6 of 7; " target="_blank">Bonham Strand LLC v. Paredes, 57 Misc 3d 1217(A) *3 (Justice Ct Town of Greenburgh 2017). Petitioner is collaterally estopped from contesting that the building is rent stabilized.[FN1]
According to Respondent's Exhibit B, the rent for the prior tenant was $1,920 per month, whereas according to the lease, Petitioner's Exhibit 1, the monthly rent that Petitioner is seeking is $2,175. The difference, $255, constitutes a 13% increase in rent, whereas according to the New York State Division of Housing and Community Renewal, the rent may be increased by 2% only upon vacancy. Respondent's Exhibit C. A 2% increase would be $38.40 per month. Thus, it appears Petitioner has overcharged Respondents in the amount of $216.60 per month. As Respondents paid rent for the period November 15, 2023 through August 31, 2023, a period of 9.5 months, the total rent overcharge paid amounts to $2,057.70.
Petitioner's Exhibit 3B is a copy of Petitioner's Reply to Answer. Exhibit 4 to Petitioner's Reply to Answer includes an email string beginning August 19, 2023, 7:59 PM from Petitioner to Respondent King concerning the damage caused on August 16, 2023 by the leak from Apartment 3N. In that email Petitioner states that "As indicated in our lease agreement, Landlord is not liable for damages, loss, or expenses to any person or property, unless due to Landlord's negligence. You may contact Tenants 3N." Another email at 9:03 PM from Petitioner instructs Respondent to coordinate the repairs with the 3N tenants "Since I will not be involved in this repair, make sure 3N repair person completes this task properly." In response, Respondent King informed Petitioner that "we are not responsible for making sure this repair is done properly." Petitioner's Exhibit 7 is an email string that starts on September 19, 2023 at 8:45 PM, in which Respondents inform Petitioner that the ceiling has not been repaired, and as a result, because the bedroom is uninhabitable, Respondents have been sleeping on the floor of the living room. "You [*3]have made no attempts at repairing the damages therefore we will not be paying the full month's rent for September." Respondents offered to withhold 35% of the rent for September and 17.5% for the half-month of August. In response, on September 20, 2023, at 8:31 AM, Respondent stated "This is a violation of the lease agreement. It clearly stated monthly rent must be paid in full without deductions. Rent cannot be withheld due to repairs."
Respondent placed in evidence photographs showing the extent of the damage to the bedroom ceiling. They also placed in evidence and played in court a video taken in November 2022, showing the condition of the apartment when they first moved in. Many, if not ALL of the conditions that Petitioner seeks reimbursement for repairing were present at the time when Respondents first occupied the apartment. Petitioner correctly points out that Respondent' took the apartment "as is", but that does not mean Petitioner can charge Respondent's to repair conditions that existed when they first took possession of the apartment.
In addition, Respondents placed in evidence and played in open court a video of a squirrel in the wall of the apartment as the squirrel was chewing through the sheet rock wall.
Petitioner asserts that paragraph 9 excuses Petitioner from having to make any repairs due to the water leak, as that provision only applies to a fire. In fact, the lease provision applies to "fire, accident, damage, or dangerous or defective condition," and only if Tenant gives prompt notice. Damage caused by a water leak is an "accident" that has caused a "defective condition." Tenants gave Respondent prompt notice and Respondent knew of the leak on the day it happened. While paragraph 9 does not require the Landlord to repair furniture and fixtures, the Landlord "need only repair the damaged part of the Apartment."
Respondents claim that Petitioner's failure to repair the ceiling, violated the warranty of habitability imposed by state law. To whatever extent terms of the lease conflict with the warranty of habitability, such lease terms are contrary to the statute and are void.
CONCLUSION
Base on the foregoing, the Court holds as follows:
Petitioner's claim to recover damages of $6,714.00 is denied because Petitioner failed to comply with RPL § 235-3(d) which requires landlords to provide written notice via certified mail that rent is past due. Accordingly, this court lacks jurisdiction to hear Petitioner's claim for unpaid rent and damages.
In addition, even if Petitioner did provide proper RPL 235-e (d) notice, items such as late fees and repairs are not recoverable in a summary proceeding. See RPAPL § 702 ("No fees, charges or penalties other than rent may be sought in a summary proceeding pursuant to this article, notwithstanding any language to the contrary in any lease or rental agreement.")
In addition, even if they were properly before the Court, Petitioner failed to prove that Respondents caused the damages alleged, and even if it did Petitioner failed to prove that it incurred expenses of $2,200 to make the alleged repairs.
Petitioner's claim for two months' rent, in the total amount of $4,350 is offset by the amount of the illegal rent overcharges, totaling $2,057.70, resulting in a reduction to $2,292.30. In addition, Respondents are entitled to a rent credit arising from Petitioner's breach of the warranty of habitability due to the damage to the bedroom, for the period August 16, 2023 through October 31, 2023, in the amount of $380 for August 16-31, 2023, $761.25 for September, and $761.25 for October, totaling $1,902.50. When deducted from $2,292.30, the net due from Respondents amounts to only $389.80. Finally, Petitioner's failure to adequately [*4]respond to the squirrel infestation breached the warranty of habitability and entitles Respondents to a credit of at least $389.80. Accordingly, Petitioner's claim for damages is reduced to zero.
In any event, because Petitioner failed to comply with RPL 235-e (d), the Petition is dismissed with prejudice.
Respondents' counterclaim for refund of the security deposit in the amount of $2,175 is granted. Petitioner shall refund the security deposit to Respondents within 14 days of the date of this order.
The foregoing constitutes the judgment of the court.
Dated: December 14, 2023.
________________________________
David A. Koenigsberg
Dobbs Ferry Village Justice Footnotes
Footnote 1:Tong has a history of making "gross misrepresentations" in court. See Bonham Strand LLC v. Paredes, 57 Misc 3d 1217(A) *3, n. 2 (Justice Ct Town of Greenburgh 2017).
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