Valoma v G-Way Managment, LLC
Annotate this CaseDecided on November 3, 2010
Civil Court of the City of New York, Kings County
Petra Valoma, Samuel Bromell, Chad D. Kistler, and Audrey Hailes, Claimants,
against
G-Way Managment, LLC, Beford Ave. Partners LLC, and Brooklyn Eight Holdings LLC, Defendants.
SCK 3545/10 - 1, 2, 3
Margaret A. Chan, J.
Claimants were roommates who rented an apartment in a building owned by defendant landlord Bedford Ave. Partners LLC., and managed by co-defendant G-Way Management, LLC. Claimants vacated the premises prematurely as they were chased out by bedbugs. All four claimants signed the lease and all four jointly paid the rent and security deposit. They each commenced a small claims action to recover their share of the security deposit ($2,850.00) as well as the rent they paid for two months ($5,700.00) and loss of property ($800.00). Claimant Petra Valoma and Samuel Bromell each claimed $2,137.00 [FN1]; claimant Chad Kistler claimed $2,337.50; and claimant Audrey [*2]Hailes claimed $2727.50 [sic][FN2]. The claims were consolidated for the purposes of trial, and the claims are amended to reflect an equal share for the return of the deposit; the return of the March 2010 rent; the return of the April 2010 rent; and the loss of property. As noted by defendants, if the claims were joined, the consolidated relief sought would be beyond the jurisdictional amount of small claims court, and thus, they remain separate. The claims against defendants G-Way Management, LLC ("G-Way") and Bedford Eight Holdings, LLC, the umbrella company for the owner, are dismissed; they are not the owners/landlord of the subject property.
Claimants moved into the apartment on February 1, 2010. Bedbugs moved into the apartment on or about March 6, 2010. Claimants notified G-Way of the bedbug infestation on March 8, 2010, who then had the apartment exterminated on March 13, 2010. The first extermination attempt was futile; the bedbugs persisted. G-Way had the extermination done three more times that month, but to no avail. Claimants complained about the extermination company and its ineffectiveness. In April, G-Way hired a new extermination company, which conducted two additional visits that month. In all, there were five to six attempts by two extermination companies, but the bedbugs remained; the claimants did not. They vacated the apartment on April 12, 2010 and returned the key to G-Way on April 30, 2010.
Claimants testified that they had to get rid of most of their belongings, including furniture, and were forced to stay with family or friends during March and April. They took turns sleeping in the apartment at night to see whether the bedbugs were exterminated, but after they were each bitten, they gave up and fled the infested apartment.
G-Way, by its manager/general counsel, Michael Prince, testified that of the four apartments in the building at issue, only claimants' apartment had the bedbug infestation. Prince argued that the claim is essentially for 100% of rent abatement, which is unprecedented.
Real Property Law § 235-b requires a landlord to, among other things, maintain an apartment fit for human habitation and free of conditions which would be dangerous, hazardous, or detrimental to a tenant's life, health or safety. This "implied warranty protects ... 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], quoting Park West Mgt. v Mitchell, 47 NY2d 316, 328 [1979]). Recent cases have held that bedbug infestation can constitute a breach of the implied warranty of habitability (see generally, Zayas v Franklin Plaza, 23 Misc 3d 1104(A) [Civ Ct NY Cty, 2009]; Ludlow Properties v Young, 4 Misc 3d 515 [Civ Ct NY Cty, 2004]; Wenk and Shafer, Good Night, Sleep Tight, Don't Let the Cimex Lectularis Bite, NYLJ, January 26, 2006, at 1, col. 4). However, the condition can not be caused by the tenant in his/her own portion of the premises nor can the tenant cope with the condition, and the landlord was afforded the opportunity to cure the condition (see Barnard Realty Co. v Bonwit, 155 AD 182 [App Div 1st Dept, 1913]; Leo v Satagada, [*3]45 Misc 2d 309 [City Ct Orange Cty, 1964]). Where a landlord has breached the warranty of habitability, the court may, among other things, award a tenant a rent abatement representing the diminution in value of the services s/he contracted for (see Park West Mgt. v Mitchell, 47 NY2d at 329).
Generally, tenants raise a bedbug infestation problem as a means to obtain an abatement of rent or as a claim of constructive eviction (see e.g., Bender v Shapiro, 2009 WL 513566; Zayas v Franklin Plaza, 23 Misc 3d 1104(A) [Civ Ct NY Cty, 2009]; 74 NY Jur. 2d Landlord & Tenant, Section 302). Here, constructive abandonment is not at issue as claimants were not required to assert a defense. However, claimants are raising the bedbug infestation as a breach of the warranty of habitability to get a return of two months rent and the return of their security deposit. Defendant suggests that claimants caused the infestation, but offered no evidence in support. Considering the affected premises is in a multiple dwelling building with common areas, it cannot be said that the infestation problem was caused by claimants after having lived there for one month even if the other apartments were not affected as yet. However, claimants have shown that the bedbug infestation was so severe that it was beyond mere annoyance. Indeed, they threw out furniture and were not able to sleep in the apartment for much of the time in March and April. Therefore, despite six treatments in as many weeks by defendant's exterminators, the problem persisted in such severity that the claimants were unable to use the premises as intended and therefore, there was a breach of the lease by defendant. As such, claimants are entitled to a return of their security (see Ianacci v Pendis, 64 Misc 2d 178 [Civ Ct NY Cty, 1970]) in the amount of $2850.00 or $712.50 per claimant.
As for claimants' demand for the recovery of rent for the months of March and April 2010, the court is mindful that although they did not have full use and enjoyment of the apartment for those months, they maintained possession of the premises. Since claimants were deprived of full use and enjoyment of the premises, an abatement of rent for the two months is appropriate. The court is also mindful that while the extermination was not successful, defendant was fairly prompt in its response by getting an exterminator within five days of the initial complaint, with follow-up visits, and a change of exterminator when the problem was not improved. Unfortunately, it is not unusual that the bedbugs are not eradicated after a few attempts. Taking all these factors into account, an abatement of 50% per month for the two months is awarded (see Assoc. v CW, 24 Misc 3d 1225(A) [Civ Ct Bronx Cty, 2009]; Ludlow Properties v Young, 4 Misc 3d 515). Thus, the monthly rent of $2,850.00 per month is abated to $1,425.00 for March and April. Claimants paid both March and April in full, thus, they are entitled to receive $2,850.00 as an abatement for both months, or $712.50 per claimant.
Finally, as to the claim for loss of property, claimants testified that they had to throw out practically all their furniture and personal items. They, however, did not have any receipts or any evidence to support this claim. There was also no testimony as to the value of any of the items now discarded, or how much furniture they had to begin with. In any event, absent any evidence to assign a value to the loss of claimants' property, the usual rule applied in personal items is "by considering all of the circumstances in a rational way and assessing damages through the exercise of good sense and judgment by the triers of fact" (Kemp v Midtown Movers, 2003 WL21911078 [App Term 2nd [*4]and 11th Judicial Dists, 2003] quoting MacGregor v Watts, 254 App Div 904 [App Div 1st Dept, 1938]). An amount of $100.00 is awarded to each of the claimants. Additionally, defendant's request to offset the judgment to claimant in the amount of $2,950.00 for the broker's fee, is denied. There is no reason to compel an offset due to landlord's breach of the implied warranty of habitability.
Accordingly, judgment is in favor of claimant Petra Valoma, index SCK 4704/10, in the
amount of $1,525.00; claimant Samuel Bromell index SCK 3796/10 in the amount of $1,525.00;
claimant Audrey Hailes index SCK 3797/10 in the amount of $1,525.00; and Chad D. Kistler
index SCK 3545/10 in the amount of $1,525.00.
Dated: November 3, 2010________________________
MARGARET A. CHANJudge, Civil Court
Footnotes
Footnote 1:Security deposit + 2 months rent
= $8,550.00/4 claimants = $2,137.50
Footnote 2:Both Kistler's and Hailes' claims
included "loss of property", which totaled about $800.00, or $200.00 per each of the four
claimants.
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