Cameron v Aurora Assoc.

[*1] Cameron v Aurora Assoc., LP 2008 NY Slip Op 50667(U) [19 Misc 3d 1112(A)] Decided on April 2, 2008 Civil Court Of The City Of New York, New York County Jaffe, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through January 12, 2010; it will not be published in the printed Official Reports.

Decided on April 2, 2008
Civil Court of the City of New York, New York County

Ray Cameron, Plaintiff,

against

Aurora Associates, LP, Defendant.



055809CVN2005

Barbara Jaffe, J.

A bench trial was held before me from October 29 to 31, 2007 on plaintiff's action to recover damages he sustained as a result of defendant's alleged breach of a lease, fraudulent inducement, and breach of the statutory warranty of habitability and of the implied covenant of quiet enjoyment. On February 13, the parties submitted memoranda of law.

I. FINDINGS OF FACT

Plaintiff, Paula Hampton, James Newman, Andrew Paralic, and Frank Holley testified for plaintiff. Ramon Peralta, Richard Pimental, Derrick Sage, and Ellen Celnik testified for defendant. I find as follows:

On December 4, 2000, plaintiff, a long-time Carnegie Hall usher and Metropolitan Opera dresser and tailor, applied for residency at the Aurora, a "supportive, shared housing residence for adults sponsored by The Actors' Fund of America, a not-for-profit human services organization serving entertainment professionals." At the Aurora, defendant "offers affordable housing for elder citizens, working professionals, and persons with AIDS." (Def. Exh. A). The federal government provides defendant with rent subsidies. The Actors' Fund (The Fund) manages social services there and Common Ground manages the building. Most of the apartments are shared; there is a small number of single-occupant apartments in the building.

On December 22, 2003, plaintiff agreed in writing to be bound by certain conditions designed to foster cooperation and consideration between roommates. Section VII of the agreement provides as follows: If my roommate threatens to harm me or engages in acts of physical violence against me or engages in any illegal activity such as using or selling illegal drugs, I understand that I should immediately report my roommate's conduct to the police and file an incident report wit[h] the security staff at the Aurora.

(Def. Exh. G). Upon the receipt of an incident report, defendant's representatives contact the tenant for further information concerning the incident and depending on the severity of the circumstances, they will attempt to resolve any problem. When a roommate dispute is involved, they notify social services and failing a resolution, the parties are referred to outside mediation through Safe Horizons. Additionally, defendant will not consider a tenant's request to move [*2]within the building until the tenant has lived there for six months.

Pursuant to defendant's procedures, Ellen Celnik, a licensed social worker and the Fund's Director of Social Services, introduced plaintiff, then 65 years old, to 45-year-old musician Joe Bozzi. Bozzi, taller and much younger than plaintiff, seemed calm. He told plaintiff that he had had a negative experience with a roommate who had used his belongings.

Bozzi's last roommate was Andrew Paralic, who testified that Bozzi, apparently unemployed, often stayed up all night making noise, playing his trumpet, running the shower constantly, and causing water to accumulate on the bathroom floor. When Paralic attempted to talk with him about his conduct, Bozzi uttered an obscenity at him, and when Paralic put an electric piano in the living room, Bozzi threatened to "shove it up his ass." Richard Pimental, Common Ground's Director of Property Management at the Aurora, conceded that Bozzi's violent behavior warranted further investigation along with input from social services. Pimental also observed, however, that there are two sides to every story.

On October 6, 2003, Bozzi threatened Paralic's visitor, fellow Aurora resident James Newman, claiming that Newman was in the apartment "morning, noon, and night," disrupting his trumpet practice. An incident report was filed. (Pl. Exh. 5). According to Newman, Bozzi was initially cordial to him while he had been helping Paralic move in, but on the third day, Bozzi became agitated, and on the evening of the fourth day, when Newman was cleaning the sliding door to the terrace in the living room, Bozzi approached him and screamed in his face, "You are here morning, noon, and night and I'm sick of it. Get the fuck out." Newman replied, "Come on Joe, please hit me. I beg you." Paralic intervened and asked Newman to leave. Newman left, filed a complaint form, and called the police. (Pl. Exh. 4). Notwithstanding Paralic's alleged violation of the defendant's roommate rules by having Newman at the apartment too often (Def. Exh. G), Bozzi's reaction to Newman's presence was unduly strident.

Paralic fruitlessly complained to defendant about Bozzi and, fearing that he would turn violent and after only eight days in residence, forfeited $1,200 he had given as a first and last months' rent in order to terminate his lease to get away from Bozzi. Frank Holley, a security officer then employed by defendant through another agency, and Derrick Sage, Common Ground's Tenant Services Coordinator, knew that Paralic moved out because of Bozzi's behavior.

Before Paralic, Bozzi shared the apartment with Santiago Gonzalez, who moved to a single room at the Aurora for reasons unrelated to his relationship with Bozzi.

By written lease dated January 1, 2004, defendant granted plaintiff, in exchange for

monthly rent in the amount of $545, the other bedroom of Bozzi's apartment and "a one-half undivided leasehold interest" in the rest of the apartment. (Pl. Exh. 6).

In paragraph 3A of the lease, defendant agreed that the apartment was fit for human habitation and that "there will be no conditions which will be detrimental to life, health or safety." In paragraph 3B, plaintiff agreed to do nothing to interfere with or render more difficult defendant's efforts to provide him and all other occupants with the required facilities and services, and that any condition caused by his misconduct "shall not be a breach" by defendant. (Id.). In paragraph seven, plaintiff agreed not to engage in behavior which would render the apartment "less fit to live in for you or others" or do "anything which interferes with the right of others to properly and peacefully enjoy their Apartments, or causes conditions that are dangerous, hazardous, unsanitary and detrimental to other tenants in the Building." Such behavior or conduct, the parties agreed, would give defendant the right to terminate the lease. (Id.).

On January 5, 2004, with Bozzi's approval, plaintiff moved in with him. He hired a van for $250 and, given the size of his bedroom, purchased a large custom-made bed for $358. (Pl. Exh. 7).

Some time after plaintiff moved in, Newman told two members of defendant's management staff about Bozzi's conduct and that Bozzi had expressed a desire to live alone, which was conveyed to Celnik. Newman was told that the matter was between Bozzi and his roommate and that Bozzi had been spoken with by staff to no avail.

Soon after plaintiff moved in with Bozzi, he told Sage that Bozzi was unfriendly and [*3]Sage advised plaintiff to respect Bozzi's privacy. Bozzi mentioned to Sage that he wanted a roommate, not a friend.

On January 12, 2004, plaintiff called defendant for assistance with the bathtub which had been clogged following Bozzi's use. In response to plaintiff's attempt to discuss the matter, Bozzi uttered an obscenity at him and walked away.

In an incident report dated January 20, 2004, Raymond Peralta, defendant's security director, recorded his receipt of a call for help from Bozzi, who said that plaintiff had threatened him and that he was afraid. When Peralta arrived at the apartment, plaintiff denied having threatened Bozzi. Peralta told Bozzi to call the police if he feels threatened. Plaintiff told him that a meeting between him and Bozzi was planned later in the week. Peralta told the two to avoid one another until then. (Def. Exh. C).

On January 21, 2004, while plaintiff was making lunch for himself in the kitchen, he closed the window blinds to eliminate glare from the sun. Bozzi, who had been in his bedroom, entered the kitchen and opened the blinds. When plaintiff again closed the blinds, Bozzi ripped out the cord. Plaintiff immediately registered a complaint with defendant, whose representative demanded that Bozzi pay for the blinds despite his assertion that they belonged to him. According to plaintiff, defendant's representative had him prepare the work order request given Bozzi's lack of cooperation. (Pl. Exh. 13). In the incident report, dated January 21, 2004, security officer Robert Harley stated that a neighbor had complained about "noise and fussing" emanating from plaintiff's apartment. According to plaintiff, Bozzi caused the noises by screaming and using profanity at him. When Harley responded, plaintiff told him that Bozzi had ripped down a shade located in a common area of the apartment. (Pl. Exh. 9).

On January 22, 2004, plaintiff met with Sage, Celnik, and Barry Siegel, the Supervisor of Social Services. Celnik also met with Bozzi. Plaintiff and Bozzi were each encouraged to consider housing outside the Aurora. Sage discussed with them the roommate agreement and reminded them that they did not have to be friends but only had to get along. Plaintiff then agreed to keep the hamper out of the bathroom.

On January 23, 2004, when leaving for work, Bozzi followed plaintiff to the elevator and prevented him from going to work by holding the elevator button for approximately 10 minutes until another tenant arrived. (Pl. Exh. 10).

On January 25, 2004, Bozzi removed plaintiff's laundry hamper from the bathroom and placed it in front of plaintiff's bedroom door. (Pl. Exh. 11). When a security guard responded, Bozzi refused to explain his conduct. Soon thereafter, plaintiff again found the hamper in front of his door. (Pl. Exh. 12). Bozzi refused to move it when asked to do so by a security guard. When Bozzi again placed the hamper in front of plaintiff's door, plaintiff tripped over it and called the police. When the police arrived, Bozzi initially refused to leave his room. Upon being asked by the officers why he was placing the hamper in front of plaintiff's door, he remained silent and initially refused the officer's order to remove it. The security guard was aware of the presence of the police in plaintiff's apartment.

On January 26, 2004, plaintiff called for the assistance of a security guard while Bozzi went to the security desk and told Peralta that plaintiff was cursing at him, which plaintiff denied. Peralta recorded plaintiff's complaint that Bozzi was on the terrace looking into his room, and told both of them that while Bozzi was entitled to go on to the terrace, he should not look into plaintiff's room. He told each to stay away from one another. (Pl. Exh. 14).

Bozzi engaged in other annoying conduct such as blowing his trumpet, throwing plaintiff's toothbrush into the toilet and pushing his toiletries around the bathroom, and breaking plaintiff's dishes by carelessly moving the drainer on which they lay. At around this time, plaintiff told defendant's Management Director Ed Plesnitzer that he was afraid to live with Bozzi and that he feared that Bozzi would physically attack him, as he often yelled obscenities in his face. Defendant did nothing to help plaintiff.

On February 3, 2004, Bozzi lodged a complaint against plaintiff with defendant.

Having previously complained about Bozzi to Plesnitzer, and having been told that if he [*4]was uncomfortable, he should move out, plaintiff sent Plesnitzer a letter, dated February 4, 2004, which he copied to several of defendant's representatives, setting forth some of the incidents set forth above and several more. In the letter, plaintiff described himself as a senior citizen who was elated at having been accepted into residence at the Aurora. He described Bozzi's terrorizing conduct and recounted the following statement made to him by Bozzi: "I am going to chase you out of here like I did my last room mate." (Pl. Exh. 15).

On February 11, 2004, plaintiff called the police and complained that Bozzi had shoved him and threatened him. Peralta's incident report reflects that Bozzi claimed that plaintiff threatened him with a knife and said he would shoot him and break his legs. The police declined to make an arrest and advised plaintiff to file a harassment complaint, which he did the following day and provided defendant with a copy of it. Although Peralta claims that Bozzi had called building security, his incident report reflects that plaintiff had done so. (Pl. Exh. 16). Peralta told Bozzi to call the police if he felt threatened. Bozzi lodged a complaint against plaintiff with defendant.

Defendant now knew that the police had twice been called to plaintiff's apartment and that six incident reports had been filed by the two roommates over the five weeks since they began living together. It was thus aware that the relationship between them had disintegrated to the degree that plaintiff had reason to feel frightened and that some of the incidents he reported echoed those reported by Paralic.

On February 13, 2004, when the temperature was below freezing, Bozzi turned off the heat in the apartment, opened the door to the terrace, and opened the windows. Plaintiff reported it to management. (Pl. Exh. 17).

In an incident report dated February 17, 2004, security officer Castro reported that Bozzi had called to complain that plaintiff was banging on his door. When Castro responded, he heard no noise and plaintiff told him that it was Bozzi who was making noise and threatening him. Castro told the two to avoid one another. (Def. Exh. D).

On February 17, 2004, plaintiff sent another letter to Plesnitzer, copied to other representatives of defendant, in which he described additional threatening and harassing conduct by Bozzi and expressed his concern for his own safety given Bozzi's threats to "get [him] out of here like he did his last roommate." (Pl. Exh. 18). Plaintiff also informed Plesnitzer that he had requested mediation and that a meeting had been scheduled for March 2. (Pl. Exh. 22). Plesnitzer did nothing for plaintiff.

Plaintiff began to have trouble sleeping. Additionally, Bozzi would leave water puddles in the bathroom which plaintiff was relegated to mopping up given Bozzi's angry response to plaintiff's attempt to get him to cooperate.

On February 23, 2004, Bozzi lodged a complaint with defendant against plaintiff. The next day, Bozzi threatened and shoved plaintiff. Plaintiff called the police and, upon their arrival, Bozzi denied plaintiff's accusation and accused plaintiff of pointing a knife at him. In an incident report, Holley reported that Bozzi had called the front desk about plaintiff threatening him with a knife and the police were called by a member of defendant's staff. When Holley arrived at the scene, he was told by plaintiff that he was cutting an onion, which was corroborated by Holley's observations. Bozzi told him that plaintiff was following him with a knife raised and pointed at his back. Plaintiff was thus arrested (Def. Exh. E) for the first time in his life, and a temporary limited order of protection issued against him in Bozzi's favor. Bozzi lodged a complaint with defendant against plaintiff. The March mediation date was cancelled. As plaintiff remained in jail overnight, his wife was granted access to the apartment to obtain plaintiff's blood pressure medications. (Pl. Exh. 20). The charges were dismissed the following day.

On February 27, 2004, plaintiff executed a written request to change apartments and expressed a preference for a one-bedroom apartment. (Pl. Exh. 21). Pursuant to defendant's policy, Plesnitzer told him that the request would not be considered until six months had elapsed since the day he moved in. Plaintiff was keenly disappointed and confronted Plesnitzer with his [*5]understanding that he, Plesnitzer, had been aware that Bozzi was a problem long before he had moved in. Although Plesnitzer did not respond to plaintiff's accusation, given defendant's goal in maintaining the impartiality of its staff in the resolution of roommate disputes, I decline to find that Plesnitzer's silence constitutes an admission by defendant that it knew of Bozzi's violent tendencies before plaintiff moved in.

On March 10, 2004, plaintiff was arrested on Bozzi's accusation that he had violated the limited order of protection and thus, he was obliged to spend another night in jail. (Pl. Exh. 23; Def. Exh. F). A full order of protection issued in favor of Bozzi, effective until May 25, 2004. (Pl. Exh. 26). Plaintiff denied all of the facts alleged in the criminal court complaint or having done anything violent to Bozzi. The charge was dismissed. Bozzi lodged a complaint with defendant against plaintiff.

According to Pimental, defendant is required to comply with any order issued by a city agency. In complying with an order of protection, defendant asks that the tenant notify security in order to gain access to the apartment so that defendant may notify the other tenant and give him an opportunity to be elsewhere. Pimental also testified that when the temporary order issued, defendant offered to release plaintiff from his obligations under the lease and informed him of the availability of single room occupancy apartments in other Common Ground buildings. Pimental denied that defendant was on notice that Bozzi was violent.

Plaintiff did not return to the apartment, leaving his belongings, which Bozzi removed from the common hallway closet to the floor of the living room. (Pl. Exhs. 1-3). Although plaintiff paid his daughter $100 a week for approximately five months to stay on a couch in her apartment and helped her pay her bills, he continued to pay rent to defendant in the hope that another apartment in the building would be found for him.

On May 29, 2004, plaintiff went to the apartment to pick up some of his belongings. He was escorted by a management representative. (Pl. Exh. 24). He returned the following day to retrieve more of his belongings, this time with a police escort, as Bozzi was in the apartment. (Pl. Exh. 25).

On or about September 9, 2004, eight months after plaintiff had moved into the Aurora, Holley showed plaintiff an apartment where the available room was padlocked. When plaintiff asked Holley about it, Holley told him to "use [his] own judgment." Plaintiff thus inferred that the prospective roommate was a crack addict and he learned elsewhere that the roommate had stolen his former roommate's property. Plaintiff declined the apartment and was next shown one with more than one roommate, one of whom plaintiff believed was HIV positive and had just returned from the hospital. Plaintiff declined that apartment as well.

On or about September 24, 2004, plaintiff returned to the apartment with Plesnitzer, who entered plaintiff's bedroom with him and remained there as he was packing. When plaintiff asked Plesnitzer why he was watching him pack, Plesnitzer replied that he did not want to remain in the living room with "that character." When plaintiff expressed surprise that Plesnitzer had expected him to live with Bozzi when Plesnitzer was unwilling to stand in a room with him, Plesnitzer dropped his head. Plaintiff was arrested for violating an order of protection by entering the apartment without a police escort. The order apparently issued on May 27, 2004. (Pl. Exh. 27).

On or about September 30, 2004, plaintiff was shown an apartment with a bedroom which was too small for his bed. He ceased paying rent as of December 2004.

On December 7, 2004, plaintiff was awarded a small claims judgment against Bozzi in the amount of $3,768, with interest from May 1, 2004. (Pl. Exh. 28). Bozzi has not paid it.

By letter dated January 6, 2005, Plesnitzer informed plaintiff that it would continue to show him vacant two bedroom, non-smoking apartments for six months, after which he would be placed on defendant's non-resident waiting list. (Pl. Exh. 29). Plaintiff refused Plesnitzer's request that he sign a surrender agreement as he was unwilling to admit that his move was permanent or voluntary, or release defendant from its obligations under the lease. (Pl. Exh. 30). The same day, plaintiff returned to the apartment with a police officer and Peralta to retrieve [*6]more of his belongings. (Pl. Exh. 31).

On January 8, 2005, plaintiff returned to the apartment with a police officer and security officer Castro to move out the rest of his belongings including his bed. (Pl. Exh. 32). He paid $200 to move out. Up until that time, defendant continued to receive the federal subsidies for plaintiff's tenancy and did not notify the federal government that plaintiff lived elsewhere. As the bedroom had apparently remained vacant during this period, and plaintiff's belongings remained in the living room, I find that defendant did nothing inappropriate when it continued to receive the subsidies.

As a result of the anxiety and terror he experienced at Bozzi's hands at the Aurora, plaintiff lost 20 pounds.

By written notice dated January 12, 2005, defendant demanded from plaintiff $1,134 for December and January rent plus $30 in late charges and $14 for cable charges, or possession of the apartment. (Pl. Exh. 33). Soon thereafter, defendant commenced a summary nonpayment proceeding against plaintiff seeking the unpaid rent. By pro se answer dated March 30, 2005, plaintiff denied liability due to the danger posed by Bozzi. (Pl. Exh. 34). The proceeding was eventually dismissed on defendant's default.

Bozzi's next roommate was Steven Eldorf, Newman's friend. According to Newman, Bozzi urinated on the bathroom wall, constantly played his trumpet, and ran the water "as loudly as possible with the bathroom doors open for hours at a time."

Defendant eventually sought to evict Bozzi who subsequently moved to a single room at another Common Ground building.

Given the foregoing, I find that plaintiff proved, by a preponderance of the credible evidence, that as of January 21, 2004, when Bozzi violently ripped out the cord to the kitchen blinds, plaintiff was subjected to conditions which were dangerous, hazardous or detrimental to his health and safety, if not his life, and that as of February 11, 2004, defendant had sufficient notice of it. Consequently, I need not consider Paula Hampton's testimony, which was in any event significantly impeached by the bias she likely harbored against defendant arising from litigation between them.

II. ANALYSIS

A. Covenant of quiet enjoyment

Plaintiff contends that he was constructively evicted from the common area of the apartment from the beginning of his tenancy and then denied use of the entire apartment for nine months. He thus seeks compensation for all of the rent he paid and punitive damages. (Plaintiff's Closing Memorandum).

Defendant argues that plaintiff has no such claim prior to his March arrest and that having left his belongings in the apartment after his arrest, he was not constructively evicted after his arrest. It also maintains that absent its involvement in the issuance of the orders of protection and given plaintiff's decision to stay with his daughter, it cannot be held liable for plaintiff's absence from the premises from March 11 through November 24, 2004. (Defendant's Post-Trial Memorandum).

Implicit in every lease is a covenant of quiet enjoyment whereby the landlord agrees that the tenant shall not be disturbed in her quiet enjoyment of the premises. (Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77 [1970]). A breach of the covenant occurs when the tenant is actually or constructively evicted from the premises. (Id.).

Contrary to defendant's position that plaintiff's role in the disintegration of the relationship precluded it from taking any other action, a reasonable landlord in defendant's position would readily foresee the risk entailed in failing to heed calls for assistance from a 65-year-old man with no criminal record and a long history of employment at two of the city's most eminent cultural institutions. That plaintiff was arrested on the complaint of an individual known [*7]to have acted aggressively in the past and/or to have attempted to manipulate defendant's procedures in order to gain sole possession of an apartment and under all the circumstances set forth above, proves that risk. Thus, although the direct cause of plaintiff's removal from the apartment was the issuance of the second order of protection, appropriate action by defendant would have averted it. I thus find that defendant may not escape liability by taking refuge in the issuance of the order of protection.

The relationship between plaintiff and Bozzi was not typical but rose to a level at which defendant was reasonably expected to do more than repeatedly urge the two to get along, and given Celnik's inability to resolve the issues between them, it was clear that mediation would not succeed. Moreover, defendant's offer to facilitate plaintiff's move to another building without the Aurora's amenities constituted an unfair resolution of the matter as plaintiff had waited some four years for an apartment at the Aurora and, in contrast to Bozzi, he was not shown to have been unsuitable for roommate living. That he requested a single-occupant apartment proves nothing and his rejection of three apartments, after he had waited two months beyond the required six months for defendant to act on his request to move within the building, reflects prudence, not unreasonableness. Moreover, defendant's obligation to provide housing for certain individuals does not bind plaintiff. For all of these reasons, I reject defendant's claims that it properly addressed plaintiff's complaints. TS Hotel Ltd. Partnership v Rissman, NYLJ, Sept. 1, 2000, at 26, col 1 (App Term, 1st Dept), is entirely distinguishable.

Consequently, as plaintiff paid full rent in exchange for what essentially amounted to storage space during the nine months he lived elsewhere due to defendant's breach, he is entitled to reimbursement of 90 percent of the rent he paid from March 11 through November, 2004, or $4,255.46.

B. Warranty of habitability

Plaintiff also asserts that defendant breached the warranty of habitability by failing to provide or attempt to provide him with another apartment in a timely manner and that defendant's policy of requiring tenants to wait six months before seeking another apartment in the building serves no purpose other than to excuse its breach. (Plaintiff's Closing Memorandum). He also claims entitlement to damages for the all of the rent he paid ($5,995), $358 for the bed he had built for the room, $450 for his moving expenses, and $18,197 in punitive damages, or a total sum of $25,000.

Defendant denies that the incidents of which it had notice were so excessive as to deprive plaintiff of essential functions. Rather, defendant characterizes plaintiff's complaints as "typical of roommates or neighboring tenants who do not get along," and warns that an expansion of the warranty to the circumstances here "would have a chilling effect on the substantial base of SRO units in New York City," most of which require that tenants share common areas. Thus, it maintains, "[e]ven providers of other low-income housing would have cause for concern considering the higher percentage of unstable' individuals living in low-income households," and asserts that the warranty should not be extended to disputes over the use of common areas unless the tenant proves an unequivocal course of conduct by the other tenant that breaches the warranty, the tenant's lack of fault, and prior notice. (Respondent's Post-Trial Memorandum).

Pursuant to Real Property Law (RPL) § 235-b(1), a landlord or lessor is deemed to covenant and warrant that the premises leased or rented "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." However, "[w]hen any such conditions has been caused by the misconduct of the tenant or lessee or persons under his direction or control," there is no breach by the landlord or lessor. (Id.). The Court of Appeals has interpreted the statute broadly, extending a landlord's liability to acts of third parties. (Park West Mgt. Corp. v Mitchell, 47 NY2d 316, 327 [1979]; see Benitez v Restifo, 167 Misc 2d 967 [City Ct, Yonkers County 1996] [landlord's failure to evict tenant who repeatedly left water running, causing damage to plaintiff's downstairs apartment, [*8]breached warranty of habitability]; Auburn Leasing Corp. v Burgos, 160 Misc 2d 374 [Civ Ct, Queens County 1994] [landlord breached warranty of habitability by failing to evict cotenant drug dealers who bullied, harassed, and threatened tenant and her family]).

The warranty "protects only against conditions that materially affect the health and safety of tenants or deficiencies that in the eyes of a reasonable person * * * deprive the tenant of those essential functions which a residence is expected to provide'" (Solow v Wellner, 86 NY2d 582, 588 [1995] [emphases in original]), and as defendant correctly observes, the Court declined

in Solow to consider a tenant's subjective expectations arising from the terms of a lease. Rather,

the Court held that the warranty "sets a minimum standard to protect tenants against conditions that render residential premises uninhabitable or unusable." (Id.).

Here, in effect, defendant asks that an even lower standard be applied to preclude any "chilling effect" on the provision of services to the "higher percentage of unstable' individuals living in low-income households." (Respondent's Post-Trial Memorandum). I decline to do so, and observe that the provisions in the lease which require that tenants call the police and submit to mediation do not relieve defendant of liability for failing to take appropriate action where the relationship between roommates becomes volatile (RPL § 235-b[2] [any agreement by tenant waiving or modifying his rights under warranty "shall be void as contrary to public policy"]), nor do defendant's policies of remaining impartial and refusing to consider moving tenants to other apartments within six months of moving in. If, as defendant maintains, it serves a higher percentage of unstable individuals as a result of its low-income population, then it is disingenuous for it to seek to justify its failure to intervene here by rigidly adhering to policies which do not to take into account the foreseeable conduct of an apparently or even potentially unstable individual. (See Regensburg v Rzonca, 14 Misc 3d 1221[A], 2007 NY Slip Op 50109[U], * 4 [Dist Ct, Suffolk County 2007] [landlord on notice that tenants, displaced veteran tenants with serious problems and disabilities, required active supervision to maintain "an acceptable level of practical coexistence" with other tenants of his boarding house]).

Given my finding that defendant is liable to plaintiff for the rent he paid from March 11 through November 2004 (supra, II.A.), I need only address plaintiff's claim for damages as a result of defendant's violation of the warranty of habitability prior to plaintiff's eviction, from January 5 to March 11.

Defendant first received notice that the relationship may have been incapable of repair on January 20, when Bozzi claimed that plaintiff had threatened him, and was followed the next day by a violent incident reported by plaintiff. Within the next six days, three more incidents were reported. Soon thereafter, on February 4, plaintiff asked for relief only to be rebuffed. Matters became urgent on February 11, when plaintiff called the police, only to be trumped by Bozzi's report to the police that plaintiff had threatened him with a knife. Two more incidents and another formal plea for help from plaintiff resulted in no action from defendant and the almost inevitable consequence that plaintiff was arrested on February 24.

This sequence of events gives rise to the reasonable inference that as of February 11, defendant had notice of the necessity of moving one or the other to another apartment in the building. Defendant's analogy of this case to Armstrong v Archives, LLC, 46 AD3d 465 (1st Dept 2007) is misplaced as it is not the number of complaints alone but their nature which should have prompted defendant to do something more than merely instruct plaintiff and Bozzi to stay away from one another when they shared a bathroom, kitchen, and living room. Rather, the circumstances here more closely resemble those in Regensburg, 14 Misc 3d 1221(A), 2007 NY Slip Op 50109(U), and defendant failed to establish that it was prevented from moving plaintiff to another apartment in the buildingby anything other than the facile and convenient mantra that there are two sides to every story and its unwritten, arbitrary, inflexible, and impractical policy restricting a tenant from changing apartments within six months of moving in. Moreover, in contrast to the circumstances confronted by the landlord in Knudsen v Lax, 17 Misc 3d 350 (Watertown City Ct, 2007), no statute prohibited defendant from evicting Bozzi. [*9]

As plaintiff proved, by a preponderance of the credible evidence, that it was Bozzi who made the relationship unworkable in pursuit of his goal of driving plaintiff from the apartment, and that plaintiff's contribution to the breakdown of the relationship was unwilling, reflexive, and defensive, his inability to get along with Bozzi does not estop him from relying on the warranty. And, as defendant knew that Paralic had willingly forfeited a large amount of money to get away from Bozzi, any doubts it may have harbored as to plaintiff's role in the disintegration of the relationship should have been resolved in favor of plaintiff. Additionally, plaintiff diligently complied with defendant's procedures by calling the police, duly filing incident reports, and agreeing to mediation, and it was Bozzi who prevented the mediation by having plaintiff repeatedly arrested for reasons that did not pass muster in the criminal court. Under the circumstances, plaintiff may not be faulted for not seeking to arbitrate here.

I thus find that as of February 11, defendant violated the warranty of habitability it owed plaintiff who, had he remained in possession today, would have been entitled to an abatement of one-third of the rent he paid from February 11 to March 10, 2004, or $181.67, and is now entitled to it as damages. As plaintiff failed to establish that his other expenses were incurred as a result of defendant's breach, I decline to award him damages in the form of the cost of his bed or his moving expenses. Given this result, there is no need to address plaintiff's cause of action for breach of contract.

C. Fraudulent inducement

Plaintiff claims that having failed at the outset to reveal to him Bozzi's known tendencies, defendant should be held liable to him for fraudulently inducing him into entering into the lease. While defendant was aware that Bozzi had acted inappropriately with Paralic and Newman, it was not unreasonable in believing that he may have gotten along with plaintiff. Consequently, even if such a claim were sufficiently distinct from plaintiff's breach of warranty claim (see Town House Stock LLC v Coby Housing Corp., 36 AD3d 509 [1st Dept 2007]), I find that defendant did not fraudulently induce plaintiff into entering into the lease agreement knowing that Bozzi would drive him out.

D. Punitive damages

Plaintiff asks that punitive damages be imposed in order to deter defendant from future failures to intervene in similar circumstances. Defendant argues that punitive damages may not be awarded absent clear evidence of its malice or criminal disregard for plaintiff's health and safety.

"Punitive damages are permitted when the defendant's wrongdoing is not simply intentional but evince[s] a high degree of moral turpitude and demonstrate[s] such wanton dishonesty as to imply a criminal indifference to civil obligations." (Ross v Louise Wise Svcs. Inc., 8 NY3d 478, 489 [2007). They have been imposed in actions for breaches of the covenant of quiet enjoyment (Suffolk Sports Ctr., Inc. v Belli Const. Corp., 212 AD2d 241 [2d Dept 1995]) and of the warranty of habitability (Minjak Co. v Randolph, 140 AD2d 245, 249 [1st Dept 1988]) on a finding that the defendant's conduct was "morally culpable." (Finkelstein and Ferrara, Landlord and Tenant Practice in New York §§ 9:107, 10:51 [2007]).

That all parties here were fortunate in that no physical injury occurred does not alter the risk that defendant assumed by turning a blind eye to the reality that plaintiff or even Bozzi would be injured if the status quo were maintained. Defendant's attempt to excuse its failure by mechanically relying on its various hollow policies suggests both moral culpability and wanton dishonesty. Consequently, for failing to separate the two prior to plaintiff's unfortunate arrest, I impose punitive damages in the form of double the damages for the breach of the covenant of quiet enjoyment, or $8,510.92.

Accordingly, judgment is granted plaintiff in the amount of $12,948.05, with interest from February 25, 2004. The clerk is directed to enter judgment accordingly.

_______________________________

Barbara Jaffe, JCC [*10]

DATED:April 2, 2008

New York, New York