5th & 106th St Assoc. LP v Rodriguez
Annotate this CaseDecided on November 20, 2008
Civil Court of the City of New York, New York County
5th & 106th St Associates LP, Petitioner-Landlord
against
Clarice Rodriguez, Respondent-Tenant
L & T 76374/08
GUTMAN, MINTZ, BAKER AND SONNENFELDT, P.C.
Attorneys for Petitioner
BY: JESSE BAKER, ESQ
813 Jericho Turnpike - 3rd Floor
New Hyde Park, NY 11040
(212) 736-0500
DC 37 HEALTH AND SECURITY PLAN
MUNICIPAL EMPLOYEES LEGAL SERVICES
Attorneys for Respondent
STEFANIE A. MILLER, Of Counsel
125 Barclay Street - 10th Floor
New York, New York 10007-2179
Sabrina B. Kraus, J.
This summary non-payment proceeding was commenced by 5TH & 106TH
ST ASSOCIATES LP ("Petitioner") and seeks to recover possession of Apt.
2B at 4 EAST 107TH STREET, NEW YORK, NEW YORK 10029 ("Subject
Premises") based on allegations that CLARICE RODRIGUEZ ("Respondent"), the
tenant of record had failed to pay rent for the subject premises from March 2007 forward.
Respondent appeared, through counsel, and filed an answer and counterclaims on or about July 23, 2008. The matter was referred to Part S on October 31, 2008 for a traverse hearing and trial. The Court conducted the traverse hearing on October 31, 2008, and held, per the decision on the record, that service was proper. The trial commenced immediately following the traverse hearing, and continued on November 3rd and 12th, 2008. On November 12th 2008 the trial concluded and the Court reserved decision.
At trial the parties stipulated that: 1) The outstanding months of rent due were from October 2007 through November 2008; and 2) As of June 17, 2008 all necessary repairs had been completed, and that no repairs were outstanding at the time of the trial; and 3) The tenancy was subject to HUD regulations.
The primary issue before the Court is Respondent's claim of constrictive eviction, or alternatively a rent abatement, for the period of April 27, 2007 through June 17, 2008 ("Subject Period"), as asserted in Respondent's ninth and tenth affirmative defenses, and first and second counterclaims respectively.
PRIOR LITIGATION
At trial, at the request of the parties, the Court took Judicial notice of three
previous summary proceedings between the parties, specifically Index No. 59548/07,
86785/07, and 74430/07, and the contents of those court files.
Index No. 59548/07 - Summary Nonpayment Proceeding
Index No. 59548/07 was a nonpayment proceeding commenced by Petitioner against Jose Rodriguez. That proceeding was discontinued on March 19, 2007, the initial return date, by stipulation between the parties. The stipulation provided that Petitioner was discontinuing the proceeding because Petitioner had elected to commence a holdover proceeding. The stipulation [*2]further provided that Clarice Rodriguez asserted that she was the occupant of the Subject Premises, and that Jose Rodriguez had vacated the Subject Premises. Respondent's pro se answer in that proceeding had also asserted that Jose Rodriguez had not lived in the Subject Premises for eleven years, and was supposed to have been removed from the lease in connection with an order of protection.
Index No 74430/07 - Nuisance Holdover Proceeding
May 2007 through June 2008
Index No 74430/07 was a holdover proceeding commenced by Petitioner against Clarice Rodriguez, as tenant, by issuance of a 10 Day Notice To Terminate dated May 7, 2007. The Notice alleged that Respondent was creating a nuisance at the Subject Premises, by creating a Colliers type condition, maintaining the premises in an unsanitary manner, and causing leaks and flooding in the Subject Premises.
On or about August 6, 2007, Respondent appeared through counsel and pursuant to her verified answer asserted affirmative defenses, including breach of warranty of habitability, and constructive eviction from May 2006 forward. On August 8, 2007 the parties entered into a stipulation settling the holdover proceeding, pursuant to a probationary stipulation. The stipulation provided that Respondent agreed not to accumulate clutter in the Subject Premises for the next twelve months, and for Petitioner's right to bi-monthly inspections of the Subject Premises, on 48 hours written notice, to insure compliance. The stipulation further provided that on breach the matter could be restored for appropriate relief. The stipulation did not address, in any way, the issues of rent, repairs or the defenses asserted by counsel regarding breach of warranty of habitability or constructive eviction.
However, on the same day, the parties executed a stipulation settling the holdover proceeding, the parties entered into a separate stipulation (Resp. Ex. "H") wherein Respondent alleged that certain repairs were necessary, and the parties agreed to an initial access date of August 17, 2007. The stipulation provided that additional access dates were to be arranged, if necessary, on Mondays beginning in September, and that repairs were to be completed by October 15, 2007. While this stipulation was neither so-ordered by a Judge, nor included in the Court file, the stipulation did contain the caption and index number for the proceeding 74430/07.
On or about November 2007, Petitioner moved for an order restoring the holdover proceeding to the calendar, based on the allegation that Respondent had breached her obligations under the August 2007 Probationary stipulation. Petitioner alleged that Respondent had not cleaned up the Subject Premises, that the Subject Premises remained cluttered and in an unsanitary condition, and that Respondent had caused damage to the Subject Premises, including infestation of roaches and other vermin, damage to the kitchen appliances, the walls and floors.
The motion was adjourned to December 11, 2007. On December 11, the parties entered into a stipulation, adjourning the motion to January 25, 2008 for a hearing on the alleged breach, and providing that Respondent reserved all defenses to the motion.
On January 25, 2008, the parties stipulated to further adjourn the motion to March 14, 2008, and agreed the Respondent would provide access to Petitioner on February 1, 2008, between 2pm and 5pm, for an inspection of the Subject Premises.
On March 14, 2008 the parties entered into a stipulation again adjourning the motion to May 2, 2008, and agreeing for access dates "to repair violations of record" on March 24 through March 28, 2008. The stipulation provided that the Petitioner could use its key to obtain access [*3]on those dates, and that further access dates would be arranged if needed.
On May 2, 2008, Judge Marton issued an order granting Petitioner's motion to restore to the extent of setting the matter down for a hearing on June 17, 2008 to determine whether Respondent had breached her obligations under the probationary stipulation.
On June 17, 2008 the parties entered into a stipulation wherein Petitioner acknowledged that the Subject Premises had been cleaned up, and it was acknowledged that Petitioner had made all necessary repairs in the Subject Premises. The parties acknowledged that the terms of the probationary stipulation remained in full force and effect, and agreed that the stipulation was "without prejudice to any rent arrears which petitioner may pursue in a separate summary proceeding."
Index No 86785/07 - Summary Nonpayment Proceeding
August 2007 through April 2008
On or about August 17, 2007, Petitioner commenced a second non-payment proceeding against Respondent by service of a three day demand.The petition sought rent for October 2006 forward, and was served on or about September 2007. The proceeding was initially returnable October 2, 2007. Respondent appeared through counsel and filed a verified answer and counterclaims, on or about September 20, 2007. The answer included an affirmative defense and counterclaim based on breach of warranty of habitability, but asserted no claim of constructive eviction.
An initial inspection of the Subject Premises was ordered by the Court for December 26, 2007. The inspection did not take place on that date, because there was no access. Respondent moved for a second inspection by motion. The moving papers alleged that on the inspection date Respondent was unable to give the inspector access, because the locks to the Subject Premises had been changed by Petitioner. The moving papers alleged that although the locks had been changed several days earlier, Respondent was not aware of this "because due to the severe repairs in her apartment, she has been forced to live with her daughter for approximately one year." (Aff. of Stefanie A. Miller, Jan. 11, 2008, par.6).
A subsequent inspection was ordered and took place on February 1, 2008. The inspection resulted in reported violations for all but two of the conditions alleged by Respondent. The inspector found that there was no reported violation for the refrigerator or the cabinets in the kitchen.
On April 2, 2008, the proceeding was transferred to Part S for trial, the proceeding was marked discontinued without prejudice on that date. There was no mark on the file or the stipulation indicating why the proceeding was discontinued.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Court finds that Petitioner established its prima facie case at trial. The Court finds that the legal and contract rent between the parties is $769.00 per month pursuant to the lease agreements executed by the parties for the period July 1, 2008 to June 30, 2009 (Res. Ex. "A"), and July 1, 2007 through June 30, 2008 (Pet. Ex. "4"). While Pet. Ex. "4" does list a different address then the Subject Premises, it is clear by the weight of the evidence otherwise offered that this was a typographical error, disregarded by both parties, who performed under the contract.
As the parties stipulated that rent was unpaid from October 2007 through November 2008,
the Court finds the amount of rent arrears through said period totals $10,766.00.
[*4]CONSTRUCTIVE EVICTION
While Respondent acknowledges that rent was not paid for the stipulated period, Respondent seeks a 100% abatement for the Subject Period, based on her allegation that she was constructively evicted by Petitioner from the Subject Premises.
"To be an eviction, constructive or actual, there must be a wrongful act by the landlord which deprives the tenant of the beneficial enjoyment or actual possession of the demised premises." Barash v. Pennsylvania Terminal Real Estate Corp., 26 NY2d 77, at 82 (1970). Constructive eviction is found "... where, although there has been no physical expulsion or exclusion of the tenant, the landlord's wrongful acts substantially and materially deprive the tenant of the beneficial use and enjoyment of the premises. The tenant ... must abandon possession in order to claim that there was a constructive eviction." Id. at 83 (citations omitted).
The Court finds that Respondent failed to establish a constructive eviction in the case at bar. While the evidence did establish that Respondent was living with her daughter, and not at the Subject Premises, during and even prior to the Subject Period, the Court does not find that this was the result of a constructive eviction, or based on any wrongful acts of Petitioner.
At trial Respondent presented the testimony of her daughter Desiree Rodriguez, who resides in the Bronx. Ms. Rodriguez testified that her mother lived in the Subject Premises until April 27, 2007, when her mother moved in with her. Ms. Rodriguez testified that her mother moved in with her, because it was more "convenient" for both her and her mother to live together. Ms. Rodriguez testified that her mother helped her by watching her children and taking care of various tasks .
While Ms. Rodriguez' testimony did describe in detail conditions requiring repair in the Subject Premises, the testimony did not lead the Court to find that Respondent moved out of the premises because she was forced to do so based on Petitioner's failure to address conditions. Rather the Court finds that it was a life style choice made by Respondent and her daughter together, for a variety of reasons.
Moreover, Respondent's position that prior to April 27, 2007 she was able to and did live in the Subject Premises, but after that date the Subject Premises became uninhabitable is not supported by the credible evidence at trial, including the prior litigation between the parties.
Nor did Respondent offer any evidence of what led up to her moving out on that date. There was no testimony about the period leading up to the April 27, 2007 move out that would lead the Court to find that it was the culmination of worsening conditions in the Subject premises. The only link offered in evidence between the date the Subject Premises allegedly became so uninhabitable Respondent was constructively evicted, and the period prior to that, was that the date of Respondent's move was the date that the clean up, further discussed below was completed.
The evidence at trial and prior proceedings establishes that prior to April 27, 2007, while the Subject Premises may have been uninhabitable, said condition was a result of the Colliers type condition created by Respondent in the Subject Premises.
In March 2007, Petitioner discontinued the pending non-payment proceeding between the parties based on its stated intention to commence a holdover proceeding against Respondent. Respondent's daughter contracted to have the subject premises undergo heavy duty cleaning in April 2007, after the March 2007 stipulation of discontinuance, and immediately prior to the commencement of the holdover proceeding.
The cleaning service was intended to rid the Subject Premises of the enormous amount of [*5]clutter Respondent had accumulated. Ms. Rodriquez signed a contract with Spring Cleaning Service. The contract provided that over a period of five days Spring Cleaning Service would provide the following services at the Subject Premises "sorting and separating salvageable in good condition items from garbage/clutter/piles/hoarded clutter at the premises' including garbage bags. Hire a professional garbage disposal company with a truck / container to take away garbage from the premises'(Resp. Ex. "I")."
The estimated cost of the job, which was predicted to take five days with work being performed eight hours a day, was $6,000.00. The contract estimated that one fifteen yard truck would be required.
The contract further provides that the estimate is based upon " an evaluation of cleaning the premises, the volume of debris/clutter within the "premises", the number of person hours required to sort/separate, remove/discard the debris / clutter, the size of the truck required to discard the debris."
The contract was acknowledged by Ms. Rodriguez, who testified that she contracted for the services, and that said services were provided and paid for. Other witnesses of the Petitioner testified that many hundreds of bags of garbage were removed from the Subject Premises over a period of several days.
Moreover, Respondent's position on when she moved in with her daughter has been inconsistent. In this proceeding, she testified it was in March or April of 2007. Her daughter testified it was on April 27, 2007.
However in January of 2008, Respondent's attorneys submitted motion papers under Index No. 86785/07 alleging Respondent had moved in with her daughter on or about December 2006.
On August 6, 2007, Respondent executed a verification for her answer in Index No 74430/07, wherein she alleged that she had not resided in the Subject Premises since May 2006, and was seeking a complete abatement of rent, from that date forward, based on her seventh affirmative defense of constructive eviction.
Similarly, Respondent's testimony at trial was completely inconsistent and not credible. Given the foregoing, the Court finds that Respondent failed to establish her tenth affirmative defense and second counterclaim of constructive eviction and the defense and counterclaim are dismissed.
BREACH OF WARRANTY OF HABITABILITY
The final issue before the Court is whether Respondent is entitled to a rent abatement based
on her defense and counterclaim alleging breach of warranty of habitability. Real property Law
§ 235-b requires a landlord to provide a premises free of"... any conditions which would be
dangerous, hazardous or detrimental to (tenants') life, health or safety. When any such condition
has been caused by the misconduct of the tenant . . . it shall not constitute a breach of such
covenants and
warranties."
Respondent established at trial that there existed conditions in the Subject Premises which were violations of the Housing Maintenance Code, and could serve as the basis of a claim for breach of warranty of habitability. The Court specifically notes that the inspection conducted on February 1, 2008 established one class "A" violation and twenty class "B" violations in [*6]existence at the Subject Premises. Thus, Petitioner was on notice that these conditions actually existed at least as of February 2008, and was on notice of Respondent's allegations regarding the conditions even earlier.
Notice to Petitioner of Respondent's allegations is evidenced by the written agreement dated August 6, 2007, where Petitioner agreed to inspect and repair the conditions alleged ( Resp. Ex. "H") as well as Respondent's answer in Index Number 86785/07 dated September 2007. Petitioner or its agents were at the Subject Premises in March 2007, prior to the clean up, and then again in December 2007.
THE FACT THAT RESPONDENT WAS NOT LIVING IN THESUBJECT PREMISES DURING THE RELEVANT PERIODWEIGHS AGAINST AWARDING RESPONDENT ANABATEMENT
As noted above, the Court finds that Respondent moved out well before April 27, 2007 for reasons unrelated to the landlord's alleged failure to promptly repair conditions in the Subject premises. As a matter of law, the fact that Respondent was not living at the Subject Premises during the period for which an abatement is sought could in and of itself be sufficient to preclude the award of an abatement. See e.g. Halkedis v. Two East End Ave. Apt. Corp., 161 AD2d 281 (1st Dept., 1990); 25 West 13th St. v. Gerevitz, 128 Misc 2d 74 (Civ. Ct., NY Co., 1985); Leventritt v. 520 East 86th Street Inc., 266 AD2d 45 (1st Dept., 1999).
TENANT MISCONDUCT
Additionally, the Court finds that there is a strong inference presented by the evidence and previous litigation that to a large extent the conditions in the Subject Premises are likely to have resulted from the Collier's condition that Respondent was responsible for creating, prior to the April 2007 clean up. Under RPL § 235 where conditions are caused by the misconduct of the tenant, they do not constitute a breach of the warranty of habitability.
There is almost no case law defining what constitutes tenant misconduct. "In speaking about the section of the law relating to tenant's misconduct (which would vitiate the warranty) Sen. Barclay stated The use of the word misconduct' is a word that the courts must interpret." Segal v. Justice Court mutual Housing Cooperative, Inc. , 105 Misc 2d 453 (1980).
Additionally, the evidence at trial established that even after the clean up there was still so much clutter in the Subject Premises that it was difficult for Petitioner to make repairs. Specifically, Desiree Rodriguez testified that during the entire period of the claimed constructive eviction she and her mother spent several days a week at the Subject Premises. Ms. Desiree testified that the purpose of these visits was for her mother to continue to go through remaining belongings after the clean up and also to move items back to Ms. Desiree's apartment. Ms. Desiree testified that on these occasions she and her mother would remain in the subject premises all day long.
The testimony of Desiree Rodriguez in this regard directly contradicted Respondent's testimony. Respondent testified that it did not take her long after the clean up to go through her remaining possessions, and that the process of said sorting through her possessions was [*7]completed in April 2007. Desiree Rodriguez testified that this was a long and slow process which went on for several months.
Added to this testimony is the testimony of Petitioner's witnesses who testified credibly that well after the April 2007 clean up bags of debris continued to be left in the recycling room near the Subject Premises, and Respondent's testimony that she was still throwing out furniture in 2008.
The Court notes that the photographs offered by Respondent of the Subject Premises in
January 2008 show large portions of the Subject Premises were being used to stock pile and store
Respondent's belongings. The photographs show bags and boxes of belongings stacked on
furniture and up against the walls. This evidence taken as a whole leads to the Court to find that
the manner in which the Subject Premises was maintained by Respondent made it more difficult
for Petitioner to effectuate repairs.
ACCESS
Another issue that must be factored in is the issue of
access. Neither party appears to have been particularly diligent in trying to arrange for access.
When the Parties entered the August 6, 2007 stipulation (Resp. Ex. "H") regarding repairs, they
agreed to an initial inspection date of August 17, 2007. Dates after the initial date were limited to
Mondays beginning in September. The reason that the potential access dates were so limited was
based on Respondent's availability. Pursuant to the testimony of Desiree Rodriguez, she was off
from work on Mondays in September, and since Respondent was not living at the Subject
Premises she intended to use her days off for access.
It is clear that Respondent's absence from the Subject Premises was a contributing factor in limiting access.
In addition to not residing at the Subject Premises to provide access Respondent testified that her phone had been disconnected. There was no evidence that Respondents ever provided Petitioner an address or phone number where Respondent could be contacted to arrange for access. The evdience shows that Petitioner was relegated to leaving notes for Respondent at the Subject Premises in attempting to arrange for access dates, and in the case of emergency breaking into the Subject Premises to gain access.
Similarly, the testimony of both Respondent and her daughter about what happened on those initial access dates was inconsistent and not credible. Ms. Rodriguez testified that she was at the Subject Premises every Monday in September 2007 from 8 am to 5 pm to provide access pursuant to the August 6, 2007 stipulation. However, Ms. Rodriguez testified she made no additional arrangements to confirm these access dates with Petitioner, even though the stipulation explicitly stated said dates would be used if necessary, and did not provide an absolute confirmation of agreed access. Moreover, she did not make any attempt after going to the Subject Premises on those dates to contact Petitioner regarding access.
Respondent's testimony was that she was at the Subject Premises every Monday in September. She testified that she stayed in the Subject Premises until 12:30 pm, and then went to the management office. She testified that the management office was locked up and closed on one Monday, and on another occasion that it was locked and empty with a sign indicating the employees were in court. She stated on the other two occasions she spoke with an agent of [*8]Petitioner who allegedly denied knowing anything about any planned access dates. The Court did not find the testimony of what occurred on these dates by Respondent to be credible.
Respondent and her daughter testified that no written notice was given to petitioner of alleged repairs other than the documents in the court files. Respondents offered no evidence of requesting repairs from Petitioner by phone.
Additionally, other than Respondent's testimony and that of her daughter, which the Court has noted is not given significant weight given the inconsistencies and credibility issues, there is no evidence of what conditions actually existed in the apartment prior to January 2008. The only photographs offered are for January 2008 and later. The only court inspection took place in February 2008.
From the date of the inspection in February 2008, it took petitioner until May 2008 to complete repairs according to the credible testimony of Gregory Smith. Painting was done prior to April 2008. Petitioner was forced to complete the work piecemeal while moving Respondents belongings from one part of the Subject Premises to another. After the painting was completed, the following work was admittedly performed: a new refrigerator was installed, a new stove was installed, kitchen cabinets were replaced, kitchen sink and faucet were replaced, new drain lines were installed in the kitchen sink, and the outside terrace was cleaned twice.
Thus as eventually, in connection with the resolution of the Holdover Proceeding, the parties did work together to resolve both the issue of the remaining clutter in the Subject Apartment and the repairs. The Court credits the testimony of Petitioner's agents that they took it upon themselves to finally complete the repairs, by doing the work room by room and moving for Respondent her belongings from one area to the next as well as working around the belongings and clutter that remained.
Regardless of who was responsible for causing the damage and conditions, Petitioner bore the entire cost of restoring the premises. The work done by Petitioner went beyond just addressing the violations found by the HPD inspector. For example although the inspector found no violation for the refrigerator or the kitchen cabinets, it is uncontested that in response to her request Respondent was provided with all new appliances in her kitchen as well as new kitchen cabinets.
Given the combined factors of the condition in which Respondent maintained the Subject Premises prior to the heavy duty cleaning, and the remaining clutter thereafter, Respondent's responsibility in making access extremely difficult and limited, and the finding that Respondent had not been residing in the Subject Premises for some years, as well as the inconsistencies and credibility issues raised by Respondent's case, the Court finds that Respondent is not entitled to any abatement for the Subject Period.
Based on the foregoing the Court dismisses Respondent's ninth affirmative defense and first counterclaim.
CONCLUSION [*9]
Based on the forgoing, the Court finds that Petitioner is entitled to a final judgment in the amount of $ 10,766.00 as all rent due through November 2008. Issuance of the warrant shall be stayed five days for payment.
This constitutes the decision and order of this Court.
Dated: New York, New York
November 20, 2008Hon. Sabrina B. Kraus
To:
GUTMAN, MINTZ, BAKER AND SONNENFELDT, P.C.
Attorneys for Petitioner
BY: JESSE BAKER, ESQ
813 Jericho Turnpike - 3rd Floor
New Hyde Park, NY 11040
(212) 736-0500
DC 37 HEALTH AND SECURITY PLAN
MUNICIPAL EMPLOYEES LEGAL SERVICES
Attorneys for Respondent
STEFANIE A. MILLER, Of Counsel
125 Barclay Street - 10th Floor
New York, New York 10007-2179
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