Baldwin Merrick Assoc. v Relles
Annotate this CaseDecided on July 2, 2008
District Court of Nassau County, First District
Baldwin Merrick Associates, Petitioner(s)
against
Yessenia Relles, "John Doe" and "Jane Doe," Respondent(s)
2332/08
William D. Freidman, Esq.
507 Fulton Ave
Hempstead, NY 11550
Attorney for Petitioner
Roberta D. Scoll, Esq.
Volunteer Lawyers Project
Nassau Suffolk Law Services Committee, Inc.
One Helen Keller Way. 5th Floor
Hempstead, NY 11550
Attorney for Respondent
Scott Fairgrieve, J.
The Petitioner, Baldwin Merrick Associates, instituted this summary proceeding
against the Respondent, Yessenia Relles, for nonpayment of rent and seeks final judgment
awarding Petitioner possession of the premises, a warrant of eviction, and a money judgment in
the amount of $26,223 in rent. Respondent alleges counterclaims for breach of the implied
warranty of habitability and seeks an abatement of rent. A non-jury trial was held on June 10,
2008.
BACKGROUND
On July 1,
1998, Petitioner and Respondent entered into a lease of 773 Merrick Road, Apartment 3,
Baldwin, NY 11510 under the Section 8 Housing Assistance Program. The parties then signed a
Lease Agreement Amendment on September 5, 2006, which adjusted the rental payments. As of
July 1, 2006, Respondent was to pay $294 per month and Section 8 would pay the remaining
$1,406 per month, making the total rent $1,700 per month.
On July 10, 2007 the parties entered into a written agreement for payment of rental
arrears, in which the Respondent agreed to pay $5,832 by August of 2007.
Respondent received oral demands for rent by the landlord, as well as two written
warnings from the Town of Hempstead Department of Urban Renewal threatening to terminate
her from the Section 8 program if she did not make her rent payments. On or about September
21, 2007 Respondent was dropped from the Section 8 program for failure to pay her rent.
On May 6, 2008, Petitioner began the instant action, seeking $24,523 in unpaid rent
($5,823 in arrears plus $1,700 per month in rent for July 2007 through May 2008). Petitioner
later amended the petition to include rent for June 2008.
At trial, Respondent introduced into evidence a letter dated September 19, 2007 from
Neelam Talreja of Baldwin Merrick Associates, informing Section 8 that Respondent owed
$3,234 in [*2]arrears. Ms. Talrjea admitted on the record that it
was her signature on the document.
Respondent also introduced into evidence two citation letters, dated May 16, 2005
and April 18, 2007, from the Town of Hempstead Department of Urban Renewal to the
Petitioner. The letter cited repairs that were to be made by the Petitioner to Respondent's
apartment before renewal of the lease under Section 8. In addition, Respondent offered into
evidence several pictures taken in November 2007 showing damage to Respondent's apartment,
particularly leaks in the ceiling of one of the children's bedrooms. Respondent also testified as to
unsanitary and unsafe conditions in the apartment, including the presence of mice, roaches, mold
and leaks inside of the apartment, as well as garbage piled up outside of the apartment which
attracted the vermin.
DECISION
ARREARS
The Court finds that the amount of arrears owed is $3,234. Though the arrears may
have been $5,832 as of July 10, 2007 when the arrears agreement was signed, the later letter of
September 19, 2007 admittedly signed by the landlord reveals that the Petitioner acknowledges
the arrears to be $3,234. This number is also consistent with the July 10, 2007 letter from Section
8 to the Respondent reminding her to pay her rent, in which Section 8 notes that Petitioner
informed Section 8 of the rental arrears agreement as well as Respondent's indication that a
$2,000 payment would be made shortly.
RENT
Though Respondent was terminated from the Section 8 Program on or about
September 21, 2007, she continued to occupy the premises and paid no rent. "A Section 8 tenant
who holds over after the termination of the Section 8 tenancy is responsible for the full amount of
use and occupancy accruing in the period after the termination." Zappala v. Caputo, 17
Misc 3d 126(A) (N.Y.App.Term 9th & 10th Dists. 2007). See also Community Props. v.
McCloud, 2003 N.Y.Slip Op. 51088(U) (App. Term 9th & 10th Dists.) (affirming the lower
court's award of use and occupancy and holding that "the limitation of rent liability to a Section 8
tenant's share thereof continues only until the termination of the Section 8 tenancy");
Schickler v. Thorpe, 2002 NY Slip Op. 40106(U) (App. Term 9th & 10th Dists.).
Therefore, as of October 2007 the Respondent became responsible for use and
occupancy in the full amount of $1,700 per month.
IMPLIED WARRANTY OF HABITABILITY
The implied warranty of habitability provides that: 1) The landlord is required to
keep their residential properties free from condition that are dangerous to life, health or safety; 2)
The landlord has a duty to maintain the residential property in a habitable and usable fashion; 3)
The [*3]landlord has a duty to maintain the residential property in
accordance with the uses reasonably intended by the parties. Tavarez v. Wearn, 8 Misc
3d 1022(A) (2005) (citing Park West Management Corp. V. Mitchell, 47 NY2d 316
(1979)).
One available remedy for a landlord's breach of the implied warranty of habitability
is an abatement of rent. Tavarez, 8 Misc 3d 1022(A) (citing Bartley v. Walentas,
78 AD2d 310 (1st Dep't 1980)).
The proper measure for an abatement is the difference between the fair market value
of the premises as warranted and the value of the premises during the period of the breach. The
fair market value is usually measured by the rent or maintenance as provided in the lease.
Brown v. 315 E. 69 St. Owners Corp., 11 Misc 3d 1069(A) (2006) (citing Park
West, 47 NY2d 316).
Respondent offers no proof other than her own testimony of the mice, roaches or
mold which she alleges are prevalent in the apartment. Absent some documentation or
photographs of these items, this Court finds that only the ceiling leaks were proven. The leaks in
the bedroom and living room ceilings existed as far back as 2005, and continued through 2007,
as evidenced by the citation letters from the Town of Hempstead Department of Urban Renewal.
Respondent testified that the ceiling leaks are an ongoing problem still in existence today. In
addition, Respondent introduced into evidence pictures displaying the poor condition of the
bedroom ceiling, including the spackled and patched sheetrock (Exhibit D-1 at trial) and a bucket
filled with dirty water collected from the dripping ceiling (Exhibit D-6 at trial).
Respondent is therefore awarded a 15% abatement of her rent for breach of the
implied warranty of habitability. This percentage is consistent with the wide range of rent
abatements awarded for water infiltration and the resulting damage. See Finkelstein &
Ferrara's Landlord and Tenant Practice in New York, Vol. F, §9:51 at 9-23 (2002);
Marz Realty Inc. v. Lean Carol Reichman, 2003 WL 1907665, January 4, 2003 (NY
Supp. Term) (affirming the trial court's award of a 10% abatement for a ceiling leak and 5%
abatement for other deficiencies); Solow Management Corp. v. Reinicke, NYLJ January
29, 2001, p. 26 col. 1 (App. Term 1st Dep't) (allowing no more than a 15% rent abatement for
sporadic leaks from the living room ceiling); Collins Estate Corp. v. Beader, NYLJ April
9, 1987, p. 14 col. 1 (App. Term 1st Dep't) (awarding a 25% rent abatement for a leak in the
tenant's bedroom ceiling).
Petitioner is awarded a final judgment of possession, warrant of eviction with 30-day
stay, and a money judgment in the amount of $16,503.60 (which represents $3234.00 in arrears
plus $16,182 in rent, as well as a 15% abatement of the total amount owed, as delineated below).
ARREARS$3,234.00
RENT
2007
[*4]July $294.00
August $294.00
September $294.00
October$1,700.00
November$1,700.00
December$1,700.00
2008$1,700.00
January$1,700.00
February$1,700.00
March$1,700.00
April$1,700.00
May$1,700.00
June $16,182.00
Total Rent $19,416.00
Rent + Arrears
15% abatement -$2,912.40
TOTAL$16,503.60
So Ordered:
/s/
DISTRICT COURT JUDGE
Dated: July 2, 2008
CC:
SF/kgv
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