S. Klein Family, LLC v Platform, LLC

[*1] S. Klein Family, LLC v Platform, LLC 2006 NY Slip Op 50054(U) [10 Misc 3d 1073(A)] Decided on January 19, 2006 Civil Court Of The City Of New York, New York County Moulton, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 19, 2006
Civil Court of the City of New York, New York County

S. Klein Family, LLC, Plaintiff,

against

Platform, LLC, a/k/a Platform Holdings, LLC, Defendant.



039172/04

Peter H. Moulton, J.

This action arising out an alleged breach of lease was tried by the court on December 12 and 13, 2005. The parties submitted post-trial briefs on January 17, 2006.

FACTS

The court finds the following facts. Plaintiff S. Klein Family LLC is the owner of the building known as 24-32 Union Square East. Plaintiff leased commercial space on the second floor in the building to defendant Platform LLC a/k/a Platform Holdings LLC ("Platform"). The lease, dated May 1, 2003, was for a term that was to expire on April 30, 2006. The monthly rent was $2100 from May 1, 2003 through April 30, 2005. In the third year the monthly rent was to increase to $2205. Defendant paid a security deposit of $6300. Platform had approximately thirty to forty employees and consultants working for it during the relevant period. Many of these individuals worked off-site as the office only had room for six to ten people.

Platform moved out of the space on June 14, 2004, prior to the expiration of the lease term. Plaintiff re-let the space commencing on May 1, 2005.

Plaintiff now seeks the unpaid rent and late fees due for the period May 1, 2004 through April 30, 2005. In a decision on plaintiff's motion for summary judgment dated March 24, 2005, Judge Gesmer of this court held that plaintiff is entitled to rent for the period May 1, 2004 to June 14, 2004, and that there were issues of triable fact concerning the remaining rent sought.

Plaintiff proved the amount of rent sought through the testimony of Sandra Ojeda, the bookkeeper for Winoker Realty, the building's managing agent. A one page document admitted into evidence as plaintiff's exhibit 1 demonstrated the rent arrears. Ms. Ojeda testified that the rent arrears, plus the 1.5% late fee for each delinquent month as allowed by paragraph 44 of the rider, minus a credit for the security deposit of $6300, came to $19,605. The court's calculations, based on exhibit 1, and providing the same credit for defendant's security deposit, came to $19,278. The court arrived at this amount by multiplying the monthly rent of $2100 during the relevant period (May 2004 through April 30, 2005) by 12 and adding the late fees for this period [*2]($378) and subtracting the security deposit ($6300).

Defendant raised the defense of constructive eviction.[FN1] According to the testimony of Stephen Werther, one of Platform's managing members, he and other employees began to notice a "toxic" smell emanating from a business on the second floor sometime in summer 2003. Werther described the smell as "very strong" and like a "floor sealant." According to Werther the odor caused headaches and eye watering. He testified that it was strongest in the hallway outside of Platform's office, but that the odor would permeate the office. Opening the office's windows would alleviate the odor somewhat, but Werther testified that this palliative was not possible in the winter months. Werther testified that the odor made trips to the second floor's bathroom particularly difficult and that he and other platform employees typically held their breath or covered their mouths with their shirts when they visited the bathroom.

Werther described the odor's presence as "regular but intermittent." The odor would be present on a given day, but would be absent for two to five days or even ten days thereafter. On days when it was present the odor would last "for most of the workday."

Werther testified that he first tried to seek out the source of the odor. Apparently, he determined that the odor came from a dental lab on the same floor, but there was very little testimony on the source of the alleged odor.

Werther testified that he eventually contacted plaintiff by writing a letter September 17, 2003. The letter, which was admitted in evidence, complained of a "hazardous and toxic condition in your building." Werther testified that he believed that he sent this letter by certified mail, return receipt requested. However, he did not produce the return receipt in court when asked do so on cross-examination.

According to Werther the condition abated for a time, but then returned.

Werther testified that he spoke to the building's door man and superintendent about the odor. However, he did not remember their names. He did not testify in any detail concerning the timing and content of these conversations. He also testified that he made calls to the landlord by calling the number on his rent invoice, but he did not remember the individual(s) to whom he spoke.

Eventually defendant contacted the Department of Environmental Protection ("DEP"). DEP sent inspectors to the building. According to Werther, the odor was not present on that day and DEP issued no violations to the building regarding the odor. Werther called DEP on other occasions, but found it difficult to arrange for inspections on days that he could be sure the odor would be present.

Werther testified that he sent a second letter to plaintiff dated November 5, 2003. This letter, which was admitted in evidence, states that the "hazardous and toxic condition ... continues to exist" and berates plaintiff for its lack of response. Again, Werther testified that he thought he sent this letter certified return receipt requested, but he did not produce the receipt in court. [*3]

Werther sent a third letter to plaintiff dated February 9, 2004. This letter was admitted in evidence. The letter again upbraided plaintiff for its lack of response to Platform's previous letters and phone calls. The letter concludes "If I do not hear back from you immediately with a promise to remedy the situation I will have to explore my options including finding new office space and potentially suing you for damages." Werther testified that he thought that he'd kept the return receipt for this letter but he admitted that he'd been unable to find it.

No other letters were sent to plaintiff. None of the three letters sent to the Landlord were also sent to Winokur Realty, the managing agent, and no letters concerning the odor were sent to Winokur alone. Werther testified that he was not sure of the managing agent's address. However, Winokur's address was printed out on at least one of Platform's rent checks. Winoker's name and address is also included in the Rider.

Werther admitted that neither he nor any of his employees made any medical insurance claims as a result of injuries caused by the odor. No one else testified from personal knowledge concerning the odor.

Platform moved out of the space on June 14, 2004.

CONCLUSIONS OF LAW

A constructive eviction occurs where "the landlord's wrongful acts substantially and materially deprived the tenant of the beneficial use and enjoyment of the premises." (Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77, 83.) It is defendant's burden to prove that a constructive eviction has taken place. (Estate of Barnes, 37 Misc 2d 833, 838.)

The court finds that defendant did not carry its burden. A tenant must vacate the premises within a reasonable time of noticing the condition precipitating the constructive eviction. (See 74 New York Jurisprudence2d, Landlord and Tenant, § 287; M.Y. Realty Corp. v Atlantic First Financial Corp., 19 AD3d 156.) Defendant first noticed the odor no later than early September 2003. It did not vacate the premises until June 14, 2004. There was no testimony that the odor became worse after it was first noted by defendant. Defendant's delay is evidence that the alleged odor was not so noxious as to amount to a deprivation of the beneficial use and enjoyment of the premises. Defendant contended that landlord was completely unresponsive to its complaints, so defendant cannot claim that it stayed in the space because of promises of remedial action by the landlord.

The court also finds that defendant's few attempts to seek remedial action do not describe a tenant deprived of the beneficial use of his space. Defendant wrote three letters over a six month period. It additionally protested orally to the building's super and doorman and to someone over the phone at the landlord's office but without noting the time or content of these conversations, or even the names of the individuals who fielded these complaints. Defendant made no attempt to contact the managing agent. There was a lack of urgency in defendant's actions.

Moreover, Werther admitted that during the period defendant occupied the premises, it continued to perform the LLC's business. There was no testimony indicating that defendant was unable to carry on its business, or that it lost business, or otherwise suffered any loss as a result of the odor. (See Cut-Outs Inc. v Man Yun Real Estate Corp., 286 AD2d 258.) [*4]

As defendant has not carried its burden of proving constructive eviction, it is liable to plaintiff for $19,278 in back rent and late fees, with interest from May 1, 2005.

Plaintiff's claim for attorneys' fees was severed at trial. Within twenty days of the date of the instant decision, plaintiff shall provide the court and defendant with an affirmation from counsel justifying the legal fees in this matter. Defendant shall respond in writing to plaintiff's submission within twenty days of service of plaintiff's counsel's affirmation. After receipt of the parties' submissions, the court shall notify counsel if a hearing is necessary.

CONCLUSION

The clerk shall enter judgment in favor of plaintiff and against defendant in the amount of $19,278, together with interest from May 1, 2005, and costs and disbursements. The issue of legal fees is severed. Within twenty days of the instant decision, plaintiff shall provide the court and defendant with an affirmation from counsel justifying the legal fees incurred by plaintiff in this matter. Defendant shall respond in writing to plaintiff's submission within twenty days of service of plaintiff's counsel's affirmation. After receipt of the parties' submissions, the court shall notify counsel if a hearing is necessary.

Dated: January 19, 2006___________________

J.C.C. Footnotes

Footnote 1:On the record at trial, defendant withdrew its counterclaim to the extent it seeks damages, as opposed to offset, for constructive eviction. Defendant retained its claim for return of the security deposit.