Zayas v Plaza

[*1] Zayas v Plaza 2009 NY Slip Op 50579(U) [23 Misc 3d 1104(A)] Decided on April 6, 2009 Civil Court Of City Of New York, New York County Singh, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 6, 2009
Civil Court of City of New York, New York County

Jacqueline Zayas, Claimant,

against

Franklin Plaza, Defendant.



3316/2008



The claimant and defendant were both self-represented.

Anil C. Singh, J.

Claimant Jacqueline Zayas sues her landlord, Franklin Plaza, for damages arising from a bedbug infestation. Franklin Plaza denies liability.

Ms. Zayas is a tenant at Franklin Plaza, a Mitchell-Lama cooperative development. Claimant testified that in 2007, she orally notified Franklin Plaza that the building and her apartment were plagued by bedbugs. Mr. Paul Rifkin, an employee of Franklin Plaza, told her that there was nothing that defendant could do about the infestation.

Ms. Zayas testified to the steps she took from 2007 through the present to remedy the infestation. She hired private exterminators who covered holes in the apartment and sprayed. However, bed bugs kept returning. Ms. Zayas attributes this to the infestation in apartments next to and below her apartment. Ms. Zayas testified that she had to discard personal property and incurred extermination costs in the sum of $3,994.66. Additionally, she visited the doctor at a cost of $316.94 and filled a prescription for medication costing $14.30. Receipts and a spreadsheet setting forth the expenses were introduced into evidence as Claimant's 1 and 2.

Mr. Rifkin testified on behalf of Franklin Plaza that the shareholders of the Mitchell-Lama apartment units were responsible for remedying bedbug infestation. In support of this position, defendant introduced a letter into evidence from the Department of Housing Preservation & Development ("HPD") regarding a complaint to HPD from another tenant with respect to bedbug infestation in Franklin Plaza. HPD's Director of Operations, Gary Sloman, responded as follows: Franklin Plaza is a co-operative development and as such, each shareholder is responsible for the extermination of the bed bugs in their apartment unit. After a licensed exterminator completes a program of bedbug eradication at the shareholder's cost, Franklin Plaza will be responsible for a one time fogging of the apartment unit at the landlord's cost. [Defendant's A]

Accordingly, it is defendant's position that since the shareholders are responsible for [*2]extermination within their apartments, the landlord cannot be held liable for damages arising out of the infestation.

Discussion

Generally, bedbug infestation is interposed as a means for a tenant to obtain an abatement of rent based on the breach of the warranty of habitability (see, for example, Bender v. Shapiro, 2009 WL 513566; Ludlow Properties v. Young, 4 Misc 3d 515 [Civ. Ct. NY Co. 2004]), or as a claim of constructive eviction (74 NY Jur.2d Landlord & Tenant, Section 302).

Here, claimant does not seek an affirmative recovery for the breach of the warranty of habitability. Rather, her claim sounds in negligence for the loss of her property and medical treatment.

Courts have allowed negligence claims brought by hotel guests who sustained personal injuries as a result of bedbug infestation. In Grogan v. Gamber Corp., 19 Misc 3d 798 [Sup Ct. NY Co. 2008]), the trial court found that a hotel, as a landowner, has a non-delagable duty to maintain its property in reasonably safe condition (see also Martin v. The Olnick Organization, Inc., 2008 WL 5427236 [Sup Ct. NY Co. 2008]). Courts from around the nation have reached a similar conclusion (see, for example, Mathias v. Accor Economy Lodging Inc., 347 F.3d 672 (7th Cir. 2003) (sustaining a personal injury verdict for compensatory and punitive damages arising from bedbug infestation); Prell v. Columbia Sussex Corp., 2008 WL 4646099 (E.D.Pa., 2008); Duarte v. California Hotel & Casino, 2008 WL 4133333 (D.Hawai'i, 2008); and Livingstone v. H.I. Family Suites, Inc., 2006 WL 1406587 (M.D.Fla., 2006)).

HPD's letter opining that each shareholder at Franklin Plaza is responsible for the extermination does not provide the cooperative corporation with a safe harbor. Generally, a shareholder of a cooperative is responsible for maintaining the apartment in good repair and would be responsible for extermination within the apartment. However, this claim for damages is predicated upon claimant's credible and undisputed testimony that there was building-wide bedbug infestation. Section 78(1) of the Multiple Dwelling Law imposes a non-delegable duty upon the cooperative corporation, as landlord, to maintain the building in good repair (Jacobson v. 142 East 16 Coop Owners, Inc., 295 AD2d 211 [1st Dept. 2002]; see also Mas v. Two Bridges Associates, 75 NY2d 680 [1990]; Carlos v. 395 E. 151st Street LLC, 41 AD3d 193 [First Dept. 2007]).

On this record the court finds that the cooperative corporation breached its duty of care. Defendant was on notice of the bedbug infestation and took no steps to remedy the condition. Franklin Plaza's negligence was a proximate cause of the damage sustained by claimant (Jackson v. City of New York, 865 NYS.2d 613 [2008]).

Turning to the claim for property damages, the value of damaged personal property is "measured by their original purchase price, without a deduction for depreciation." Grant-Maynard v. 8 Morningside Avenue, 19 Misc 3d 142(A) [App. Term, 1st Dep't 2008], citing Conboy v. Studio 54, Inc., 113 Misc 2d 403 (Civil Court, New York Co. 1982) (Saxe, J.).

Claimant is awarded $3,899.36 for the loss of her personal property. The court declines to award claimant the monies expended to remediate the bedbug infestation as claimant is responsible to keep her own apartment in good repair. Claimant is further awarded $331.24 for her medical treatment arising out of the bedbug infestation.

ORDERED that the Clerk of the Court enter judgment in favor of claimant and against [*3]defendant in the sum of $4,230.06 with interest at 9% from December 2, 2008, together with costs and disbursements as taxed by the Clerk.

Date: April 6, 2009______________________________

New York, New YorkAnil C. Singh