Sherr v Ndir

[*1] Sherr v Ndir 2008 NY Slip Op 52036(U) [21 Misc 3d 1111(A)] Decided on September 29, 2008 Just Ct Of Town Of Ossining, Westchester County Shapiro, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through October 16, 2008; it will not be published in the printed Official Reports.

Decided on September 29, 2008
Just Ct of Town of Ossining, Westchester County

Stuart Sherr and Barbara Sherr, Petitioners/Landlords,

against

Mamadou Ndir and Selly Diaite, Respondents-Tenants



08080055



ROY, MONDELLO, LAROCCA & RISOTTO, ESQS.

Attorneys for Petitioner

56 Main Street

Irvington, New York, 10533

MAMADOU NDIR and SELLY DIAITE

Tenants pro se

11 Acker Avenue

Ossining, New York, 10562

Edwin S. Shapiro, J.

Petitioners-Landlords ("landlord")* brings this holdover proceeding against Respondents-Tenants ("tenants") based on landlord's thirty (30) day notice of termination of an alleged month-to-month tenancy. Tenants were not represented by counsel. At trial, because of the lateness of the hour, it was stipulated that the facts alleged in the petition would be sufficient to constitute landlord's prima facie case and that although no written answer was filed, tenants would be allowed to present any affirmative defenses which might apply to the testimony. A prima facie case having been conceded, the court granted the request of landlord's counsel that tenants' case be presented first. Based upon all of the testimony, the demeanor of the witnesses, and exhibits, the court makes the following findings of fact.

FINDINGS OF FACT

Landlord is the owner of a two-family house, where he and his wife occupy the upstairs apartment He rented the first floor apartment to tenants. The court credits tenants' testimony [FN1]that at the first meeting between the parties, on January 28, 2008, there was a meeting of the minds that on or after February 1st , when tenants were to move in, landlord would present and sign a written lease for a period of one-year. Tenants gave landlord a check for security in the sum of $1,500.00 and landlord handed over to tenants the keys to the apartment.

Tenants credibly testified that after they moved in, instead of presenting them with the anticipated one-year lease, landlord handed them a short handwritten note that provided only for a month-to-month tenancy. Tenants protested and refused to sign it. However, under the circumstances of having already moved all of their belongings into the apartment in reliance upon landlord's initial promise, they gave landlord a $1,500.00 check for the first month's rent. [*2]There was no meeting of minds as to intended terms and conditions of the prior security deposit. The meeting started badly and ended worse, as landlord angrily ordered tenants "out of my house."Shortly after moving in, tenants complained to landlord and his wife about a continuous lack of proper heat during the night on more than several occasions. Tenants credibly testified that landlord refused to speak to them. When, on the evening of February 24th, tenant-wife telephoned landlord, asking him to turn the heat on. Landlord responded by banging on tenants' door and threatened to "slam" her.. It became apparent that the problem could not be amicably resolved between the parties. On February 25th, tenant-wife reported to the Village police that she was being harassed by landlord, stating that she did not wish to press charges, but asking only if one of its officers "would speak with Mr. Sheer (sic.)." On or about the same date, tenants filed a complaint with the Village Building Department. An inspector came to the premises on the evening of February 27th, confirmed that the amount of heat was inadequate under the applicable New York State Code, and issued a summons to landlord for the violation.On the following day, tenants received a 30-day notice of termination of their tenancy.

On March 27th, tenant-wife reported to the Village Police that landlord had made rude comments to her and that she was unhappy about the level of respect he was giving her. A copy of the police report in evidence indicates that officers spoke to landlord about the complaint.On April 1st, landlord commenced a holdover proceeding in this court. As the named respondents, tenants appeared in court on the date set forth in the petition, only to learn, without prior notice, that landlord would not and did not appear.. Tenants credibly testified that even after petitioner's heating service bled the radiators, the heating problem continued.There were several other complaints, including landlord's unfulfilled promise, made at the inception of the tenancy, to replace an old refrigerator that was in disrepair, and landlord's lack of attention to other needed repairs, including a water leak in the bathroom. Without notice or explanation by landlord that he had turned off the hot water supply,tenants were without hot water throughout the weekend of May 31st. Apparently, landlord and his wife were away for most of the weekend. Unable to give her 7-year old child a bath, tenant-wife reported the condition to the Village Police Department. The police blotter report states that an officer came to the premises and confirmed that there was no hot water flowing to the apartment and also that there was a leak in the water outlet to the bathtub. On the day prior to the same weekend, landlord had served tenants with a handwritten note purporting to raise the rent by $200.00 per month as of July 1st. Tenants remitted the usual $1,500.00 rent for the month of July. At the direction of the court in this proceeding, the amounts of $1,500.00 were paid for the months of August and September without prejudice to landlord's claim. The court, in its discretion, did not rule that the deposit of the July check in the amount of $1,500.00 was a waiver of landlord's claim for the additional rent. Landlord brought this proceeding on August 9th.and the trial was conducted on September 18th. Landlord testified that his reasons for eviction were other than retaliation for tenants' complaint to the Building Department; namely: that tenants "lied" about not having a child in the family; that he sometimes heard the child bouncing a ball in tenants' apartment, that the rent checks were often postdated or late; that one of the tenants slammed a door in his wife's face and ridiculed the way she walked; that they broke the chain on a ceiling fan; that he couldn't stand the smell of their food; and that he no longer wanted to be "tolerated by these people." (Bothpossible references to their African origin, customs, and demeanor); and that they were operating a business in their apartment. He raised none of these objections to tenants prior to his [*3]angry testimony to these complaints during the trial. The court credits the truthfulness of tenants' testimony and finds landlord's testimony and demeanor to have been hyperbolic, volatile, and disrespectful and disdainful of tenants. Landlord's answers to questions by the court confirmed that tenants never "lied" about the existence of their child. Indeed, landlord never raised the question.

RESPONDENTS' AFFIRMATIVE DEFENSES

The court considered the following five (5) affirmative defenses:

(1) The existence of an oral lease for a period of one (1) year; (2) Retaliatory eviction pursuant to Real Property Law §233-b for having filed a complaint with the Village of Ossining Building Department; (3) Discrimination pursuant to Executive Law §96 (5a)1 because of race and/or national origin; (4) Discrimination pursuant to Real Property Law §§ 236, 237. because of respondents' having a child; and (5) Breach of the implied warranty of habitability of the premises pursuant to Real Property Law §235-b.

ANALYSIS AND CONCLUSIONS OF LAW

The court concludes that the meeting of minds which occurred on January 28, 2008 was accompanied by an exchange of value. However, that agreement was not a lease, but simply an agreement whereby the landlord was to prepare, present for signature, and sign, at a later date, a written lease for a period of one year. Landlord reneged on his promise to do so. However, this court does not have equity jurisdiction, and, therefore, may not specifically enforce the agreement to provide a lease. Therefore, it may not consider and award damages resulting from landlord's failure to perform under the provisions of the unsigned lease. Consequently, this court is required to dismiss tenants' first affirmative defense.

As the matter now stands, we are left with a month-to-month tenancy. As a result, thecourt must now allow landlord's demanded increase of the monthly rent by $200.00 commencing in July, leaving it to the Supreme Court in a possible subsequent action to determine whether to specifically enforce the unsigned lease, and if so, whether the increased rent is the result of a breach of that lease and how to quantify tenants' prospective additional damages.For other reasons, tenants' affirmative defenses of retaliatory eviction and of discrimination must also be dismissed. "Retaliatory eviction" as defined in Real Property Law §223-b does not apply to buildings containing less than four apartments, and, therefore, not to an owner occupied two- family home.

Similarly, discrimination because a tenant has a child or children, pursuant to Real Property Law §§ 236 and 237, does not apply to two-family dwellings. Nor does Executive Law §96(5a)1, which, in pertinent part,prohibits discrimination because of race and national origin, apply to occupancy of a building by only two families. Finally, damages for alleged harassment and/or assault may not be considered or awarded in this summary proceeding.

However, a remedy for breach of landlord's implied warranty of habitability pursuant to Real Property Law §235-b does apply, and is applicable to the facts in this case. It requireslandlords of residential premises to make repairs and to keep the premises fit for human habitation and for the uses reasonably intended by the parties, and free from conditions that would be dangerous, hazardous or detrimental to the life, health or safety of the tenants. Park West Management Corp. v. Mitchell, 47 NY2d 316, 418 NYS2d 310 (1979). As stated by the Court of Appeals, the standard for determining whether the premises are habitable is the [*4]expectations of a reasonable, average tenant. Tenant is entitled to recover the difference between the fair market value of the premises in good repair and their value during the period of the breach. Cf. Century Apts. v. Yalkowsky, 106 Misc 2d 762, 435 NYS2d 627 ( 1980).In determining the amount of damages, the court may consider the severity of the defects, the period of time during which they existed and their impact on the tenant's living habitsas well as the effectiveness of the landlord's attempt to remedy them. Concord Village Management v. Rubin, 101 Misc 2d 625, 421 NYS2d 811 (1979).Applying these guidelines, the court makes the following findings and abatements in rent: By reason of inadequate heat during the months of February, March and April, tenants shall be credited with an abatement of 20% for the months of February and March, and 10% for the month of April, amounting in total to $750.00. As the result of a lack of hot water throughout the weekend of May 31st and June 1st, an abatement of 6 % shall be allowed for the months of May and June, amounting to $180.00. Finally, the court will allow an abatement of 5% of the monthly rent for eight months (i.e. $1,500.00 for five months and $1,700.00 for three months) for the broken refrigerator and other unremedied defects as testified to by tenants, amounting to $630.00, for a total abatement of $1,560.00. Landlord shall be entitled to an offset of $600.00 for unpaid rent of $200.00 per month for the months of July, August and September, leaving a balance of $960.00 due and owing to tenants. .

CONCLUSION

Landlord is awarded a final order of eviction, subject to a 32-day stay of the execution of the warrant. Commencing October 1, 2008, landlord shall be entitled to payment of $54.84 per day for tenants' continued use and occupation of the premises during the period of the stay. Such payment shall be first applied from the $960.00 due and owing to the tenants, and then from tenants' security deposit being held by landlord.[FN2] Tenants are directed to allow landlord access to the premises on one (1) day notice for the purpose of showing the premises to prospective tenants; and they are further directed to give landlord at least five (5) days advance notice of the date that they will vacate the premises.

In the event that tenants shall vacate the premises on a date prior to the full application of the net abatement of $960.00, provided that tenants have given landlord the required advance notice, judgment for the remaining balance shall be entered in their favor.This decision shall constitute an order of the court.

Dated: Ossining,

New York

September 29, 2008

Edwin S. Shapiro,

O.T.J. [*5]

TO:

Footnotes

Footnote 1:According to the caption, the landlords are husband and wife. However, only the husband's signature appears on the filed court documents, the wife was not seated with her husband at the counsel table, and did not testify. For the sake of writing clarity only, and not meant as a determination that Mrs. Sherr was not a co-landlord with her husband, the court will refer to "landlord" in the singular.

Footnote 2:Considering the acrimony between the parties, tenants are reminded that they may be subject to a claim by landlord beyond the amount of the remaining security in the event that they fail to restore the apartment to its original condition, reasonable wear and tear excepted, and leave it in "broom clean" condition.