OLR ECW, L.P. v Soto

[*1] OLR ECW, L.P. v Soto 2019 NY Slip Op 51674(U) Decided on October 23, 2019 Civil Court Of The City Of New York, Bronx County Lutwak, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 23, 2019
Civil Court of the City of New York, Bronx County

OLR ECW, L.P., Petitioner-Landlord,

against

Ingrid Soto, ALI MTCHELL, ELIJAH MITCHELL, THALIA MOSES, Respondents-Tenants.



68575/2018



Petitioner's Attorney

Stephen Pianoforte, Esq.

Office of Jason M. Simensky, Esq.

885 Second Avenue, 16th floor

New York, New York 10017

(646) 618-8721

Respondent Ingrid Soto's Attorney

Maeve Callagy, Esq.

Part of the Solution

2759 Webster Avenue

Bronx, New York 10458

(718) 220-4892 x 116
Diane E. Lutwak, J.

This nonpayment proceeding was commenced by OLR ECW, L.P. (Petitioner) seeking to recover possession of Apartment 2E at 1744 Clay Avenue, Bronx, New York 10457 (the subject premises) based on the allegation that Ingrid Soto, Ali Mitchell, Elijah Mitchel and Thalia Moses (Respondents) failed to pay past due rent. The petition, dated December 20, 2018, alleges that Respondents' tenancy is subject to the rent stabilization law and a written lease agreement to pay rent of $777.16 per month. The petition seeks arrears of $2331.48 comprised of the full rent for the three months of October, November and December 2018.

Respondent Soto filed an answer on January 10, 2019, prior to securing legal representation, asserting defenses of defective service of the notice of petition and petition, conditions in the apartment and/or building and a "general denial". Respondent also wrote in on [*2]her answer form, "There is inadequate heat. Also, the affidavit of service has false information. No one was ever served." On the initial court date, January 18, 2019, Respondent Soto appeared by counsel and the proceeding was adjourned by stipulation to March 14 for her to serve and file an amended answer. The amended answer includes an objection to the rent demand and an affirmative defense and two counterclaims based upon breach of warranty of habitability due to inadequate heat; lack of hot water; uneven floors; cockroaches; and mice.

The proceeding was then adjourned for trial, first to May 1 and then to June 5 when the case was sent to Part X and scheduled for a pre-trial conference in Part T on July 17. After a second pre-trial conference on August 5 the case was adjourned to October 17 for trial, by written stipulation in which the parties agreed that Petitioner had established its prima facie case and scheduled repairs: "Following conditions to inspect & repair as required by law: 1) bleed heat pipes; 2) bathroom sink replacement; 3) exterminate for rodents; 4) exterminate for roaches. Access 8/12 & 8/14 9 am — 5 pm workers to arrive by noon." The trial commenced and concluded on October 17. Both Petitioner and Respondent Soto were represented by counsel and each called one witness; none of the other Respondents answered or appeared.

TRIAL

Petitioner's Case

Given the parties' agreement that Petitioner had established its prima facie case, the only documents Petitioner offered into evidence, admitted without objection, were:

(1) Petitioner's Rent Ledger dated 10/16/19 showing that rent is being billed at the rate of $777.16/month and as of 10/01/19 Respondent owed $2321.48, after crediting a payment of $6916.72 to her account in July 2019 which left her with a $10 credit as of 7/3/19. (2) A DHCR Rent Reduction Order issued 9/23/2015 reducing the rent to the level in effect prior to the most recent guidelines increase based on an inspection of the premises conducted on 4/7/2015 at which the DHCR found eight conditions:a. Floor not level at kitchen entry due to installation of ceramic floor tiles over existing floor;b. Kitchen sink/cabinet damaged and leaking;c. Roach/mice droppings in kitchen;d. Bathroom sink/cabinet damaged and leaking;e. Bulging wall in bedroom, right of window;f. Bedroom floor with gaps/holes between floor and molding, slightly warped and raised at entry and gouges;g. Living room floor with gaps/holes between floor and molding and gouges;h. Radiator/heater covers loose.

The parties stipulated that the monthly rent charged in Petitioner's rent ledger of $777.16 was the correct reduced amount under the DHCR Rent Reduction Order. The full rent, also listed in the rent ledger, is $837.39, and the $60.23 difference between the full and reduced rents constitutes a 7.2% reduction.[FN1]

Petitioner also requested that the court take judicial notice of a Decision and Order After Trial dated August 15, 2018 in a prior nonpayment proceeding between the same parties under Bronx County L & T # 64717/2016, a copy of which was accepted by the court without objection by Respondent. As explained in that decision, Petitioner in that proceeding sought rent due beginning in January 2016; by the time of trial in June 2018 there was $2331.48 due. After noting the DHCR Rent Reduction Order and Respondent's testimony about the conditions in her apartment — inadequate heat, filthy stove, defective refrigerator, infestations of mice and cockroaches and an uneven kitchen floor — the court awarded Respondent a rent abatement of $699.44, which the court noted constituted a 30% reduction of the arrears [FN2] , and issued Petitioner a judgment of possession and a money judgment for $1632.04 as all rent due through June 2018.

Respondent's Case

Respondent testified on her own behalf. She has lived in the building since "2007 going into 2008". Respondent testified that the following conditions have existed since June 2018:

(1) In the last heating season, the heat was a problem in all rooms except for her bedroom. Respondent described the living room, kitchen, bathroom and the other bedroom as being "freezing cold" and testified that she needs to use electric heaters and wear her coat and scarf in her living room during the winter. Respondent believes the problem is with her radiators, and that they need to be "bled" or drained.

(2) The hot water is erratic, especially in the winter; Respondent testified that this problem was "mostly at night, after five when I would be there. Definitely in the morning, the water would be freezing cold. On weekends, I would have to call the super, he would say wait, and then the hot water would come up. Once I called him and he knew, it came up. Mostly on Saturday and Sunday is when the water would be cold at 7 a.m. Then it would get warmer later in the day."

(3) Infestations of mice and cockroaches. Respondent keeps her belongings in plastic, as she finds dead roaches in the refrigerator, in the silverware drawer and in the ceiling light fixture. The closets in the second bedroom are infested with roaches, which Respondent sees crawling on the clothes. She sees mice approximately four days a week and constantly finds mice feces in the kitchen and bathroom. She can hear mice in the stove "running through the pots". Her two hallway closets were sealed about four or five weeks ago but before that they were infested with mice which had eaten through rolls of tissue. There is still a hole near one of the radiators through which mice enter the apartment.

(4) Since 2014 the floors throughout the apartment have been uneven.

(5) An overflow of water from upstairs into her bathroom occurred on a Saturday or Sunday approximately two weeks ago, causing "a big bubble of water" to appear on her bathroom ceiling. The landlord sent someone on the Monday after the weekend of the incident who "cut out the bubble, smoothed it out, painted the bathroom."

Respondent testified that she took off from work and waited at home on August 12 and August 14, the dates agreed to in the August 5 Stipulation, but no one showed up to make repairs. Respondent called to reschedule access for a date after September 22 due to her schedule and the repairs were done in early October, including installing a new bathroom sink and covering holes in her closets. An exterminator came about two weeks ago and showed her where there was a hole near a radiator that was allowing vermin in. The radiators were not bled or drained after the August 5 stipulation, and the last time they were was in 2016.

Respondent also testified that she always reports conditions as they arise, and that Petitioner has three different offices that she contacts: one nearby on Weeks Avenue that she can walk to but that now is only open two or three days a week; another one "downtown" in Manhattan that she can call or email any time; and a third one she referred to as the "Maneida" office. When she calls she always asks for the property manager or the senior regional manager; she mentioned the names of various people who have worked for Petitioner that she has spoken with at different times. She also speaks to the super, including a former one named Victor who, because of the vermin-infested condition of her stove, gave her the one from his apartment in 2015. After Victor there was "a different super who is no longer with the company" and, the day before the trial, Respondent received a call from a new super asking her to sign work orders.

On cross-examination, when asked if she had made a written record of temperature readings Respondent answered that she did "in prior court cases." When asked if she had kept a written record of the water temperature Respondent answered that she had done so in the past but not from August 2018 to the present. When asked about written correspondence with Petitioner's management office Respondent answered that she did not have anything with her, but she had sent emails and letters by certified mail.

Petitioner's Rebuttal Case

On rebuttal, Petitioner called William Jimenez, who works for Petitioner as a super in another building in the Bronx at 203 East 175th Street where he also lives. Regarding the subject building at 1744 Clay Avenue, starting in August 2018 Mr. Jimenez helped the prior super, Marino, by coming when there were "emergencies, leaks, if they have to shut off the water" approximately three times a week. When Marino was fired a few months ago Mr. Jimenez took over full superintendent responsibilities for about two months; a new super was just hired so now Mr. Jimenez again does not go to the building as much. When tenants have problems, they call the main office and the office then contacts him with work orders. When Marino was the super he would contact Mr. Jimenez when his help was needed. Mr. Jimenez had heard of another former super named Victor, who worked there "a couple of years ago" and not during the last winter.

Mr. Jimenez has been in Respondent's apartment once, about a month and a half ago, to cover holes in her closets and fix a stoppage in her bathtub. The bathtub is still draining slowly, and a plumber will need to be called. Mr. Jimenez was aware that a contractor installed a sink for Respondent because that happened while he was doing other work in the building.

Mr. Jimenez testified that there are three boilers at the building that provide baseboard heating and hot water, and he is trained to monitor them and "make a call" if a boiler is down and needs repair. Last winter there was one day when one boiler was down; it was fixed promptly, and the other two boilers were still working when that one was down. He had never been notified last winter about any problems with heat in Respondent's apartment or any adjoining apartments and testified that he was never asked to drain her radiators. He also did not [*3]know if Respondent received extermination services for rodents and roaches.

DISCUSSION

New York Real Property Law § 235-b provides for an implied warranty of habitability which requires landlords of residential premises to keep them "fit for human habitation" and free of conditions that are dangerous to the life, health or safety of the tenants. Park West Management Corp v Mitchell (47 NY2d 316, 327, 391 NE2d 1288, 1294-1295, 418 NYS2d 310, 317 [1979]). As explained by the Court of Appeals in Park West Management Corp v Mitchell, supra, "a landlord is not required to ensure that the premises are in perfect or even aesthetically pleasing condition; he does warrant, however, that there are no conditions that materially affect the health and safety of tenants. For example, no one will dispute that health and safety are adversely affected by insect or rodent infestation, insufficient heat and plumbing facilities, significantly dangerous electrical outlets or wiring, inadequate sanitation facilities or similar services which constitute the essence of the modern dwelling unit." If a landlord breaches the warranty of habitability, the proper measure for damages is " the difference between the fair market value of the premises if they had been as warranted, as measured by the rent reserved under the lease, and the value of the premises during the period of the breach." Park West Management Corp v Mitchell, supra. The award may take the form of a sum of money awarded the tenant in a plenary action or a percentage reduction of the contracted-for rent as a setoff in a summary nonpayment proceeding in which the tenant counterclaims, or pleads as a defense, breach by the landlord of its duty to maintain the premises in habitable condition. Id.

As to the measure of damages, a tenant may recover the difference between the fair market value of the premises in good repair, as measured by the agreed rent, and their value during the period of the breach as determined by the trier of facts. In determining the amount of the abatement, the court may consider the severity of the defects, the period of time during which they existed, their impact on the tenant's living habits as well as the effectiveness of the landlord's attempt to remedy them. Park West Management Corp v Mitchell, supra; Century Apartments, Inc v Yalkowsky (106 Misc 2d 762, 435 NYS2d 627 [Civ Ct NY Co 1980]).

Where there is a DHCR Rent Reduction Order in place which relates to one or more conditions for which a tenant seeks a rent abatement, as is the case here, the amount awarded as damages for breach of the warranty of habitability must be reduced by the amount of the DHCR's Rent Reduction Order. Real Property Law § 235-b(3)(c); Salmeron v Lincoln Spencer Apts, Inc (966 NYS2d 349, 2012 NY Misc LEXIS 5438 [App Term 1st Dep't 2012]), citing and quoting Rush Realty Assocs v Weston (1 Misc 3d 130[A], 781 NYS2d 625 [App Term 2nd Dep't 2003]). The DHCR's Rent Reduction Order of September 23, 2015 effectuated a 7.2% reduction in Respondent's rent due to various conditions; those that overlap with the conditions Respondent testified about in this proceeding are the vermin infestations, the bathroom sink and the floors.

The parties agreed that the period of time at issue in this proceeding cannot begin any earlier than July 2018, given that the post-trial Decision and Order in the prior nonpayment proceeding addressed Petitioner's claim for rent and Respondent's defense of breach of the warranty of habitability through June 2018. Respondent did not support her testimony with any photographs, violation reports from any government agencies or charts of her own. She tended to ramble in her testimony, providing non-responsive answers to her attorney's questions, switching topics mid-sentence and talking extensively and repeatedly about conditions that existed prior to June 2018 and what happened in prior court proceedings, even when asked to [*4]focus on the period from June 2018 forward. For example, when asked, "During this proceeding, what issues are present if any?", Respondent answered, "Back and forth numerous times. In 2012 I was in court for repairs, that case lasted until 2015." When asked, "what repairs have been done that were the subject of the prior proceeding?", Respondent answered, "Recently, from the last abatement, just recently, it's been maybe about a week or two weeks that I contacted the downtown office because when I go to the Weeks office sometimes they're closed ."

Nevertheless, Respondent established by a preponderance of the credible evidence that Petitioner breached the warranty of habitability with respect to the subject premises and that her health and safety were detrimentally affected by infestations of mice and cockroaches during the sixteen-month period of July 2018 to the present. While some holes through which mice enter her apartment were covered within the past month, there is still a hole near a radiator that was pointed out to her by an exterminator who provided services recently; she still sees mice, mice feces and an excessive quantity of cockroaches regularly. Petitioner's witness testified that he did not know anything about the provision of extermination services to Respondent. The court finds that a 5% abatement of the rent for the 16-month period of July 2018 through October 2019 is appropriate for the cockroach and rodent infestations. See, e.g., Maxwell Dev, LP v France (61 Misc 3d 1221[A][Civ Ct NY Co 2018]). Because the DHCR Rent Reduction Order includes a rent reduction for vermin, the court is reducing the abatement for this condition from 5% to 3%.

Further, although Respondent did not present any records about the heat problem, and her testimony lacked details about temperatures and dates, she credibly testified that all rooms in her apartment except her bedroom were very cold last winter and that she believes this is because the radiators need to be drained or bled. While Petitioner's witness, who does not reside in the subject building and has only been in Respondent's apartment once, testified that there were no major problems with any of the building's three boilers last winter, he admitted that he was not asked to bleed or drain Respondent's radiators, even though it was one of the items listed in the parties' stipulation of August 5, 2019. The court awards a 10% abatement of the rent for the four months of December 2018 through March 2019 due to inadequate heat.

In addition to an abatement, the court also orders Petitioner to investigate and correct the problem of inadequate heat in all rooms of Respondent's apartment except her bedroom, including draining or bleeding Respondent's radiators if appropriate; to seal the hole near the radiator that Petitioner's exterminator identified as an entryway to the apartment for vermin; and to provide apartment-wide extermination services for cockroaches and mice, within fifteen days of this order.

No separate abatement will be awarded on Respondent's claim of inadequate hot water and a defective bathroom sink as there was insufficient evidence presented. Respondent did not offer into evidence any written record of the days and times when she had problems with her hot water and testified that when the problem occurred, and she notified the super about it, the hot water would return within a short period of time; she also offered no evidence of any violations placed by any government agencies. While the defective bathroom sink — which was replaced within the past month or so - was mentioned in the prior proceeding's Decision and Order of August 15, 2018 and in the DHCR Rent Reduction Order, it was not mentioned in Respondent's amended answer and she did not testify at trial about what was wrong with it or how this problem affected her.

Finally, a careful review of Petitioner's rent ledger indicates that the $699.44 abatement awarded by the court's Decision and Order of August 15, 2018 under L & T Index # 64717/2016 has not yet been credited to Respondent's account. Accordingly, that amount will be subtracted in calculating the amount due to date.

CONCLUSION

Based on the credible testimony at trial, Petitioner is entitled to a judgment of possession and a money judgment against Respondent Ingrid Soto for $938.04, comprised of the unpaid rent due through October 2019 of $2321.48, minus the $699.44 abatement awarded in the prior proceeding, minus a 3% abatement of the contracted-for rent for the period of July 2018 through October 2019 (3% x $777.16 = $23.32; $23.32 x 16 months = $373.12) for the vermin infestations, minus a 10% abatement of the rent for the period of December 2018 through March 2019 (10% x $777.16 = $77.72 x 4 months = $310.88) due to the inadequate heat. Issuance of the warrant of eviction is stayed five days. If Petitioner wishes to secure judgments of possession against the other Respondents who defaulted, it will have to submit affidavits of non-military status. This constitutes the Decision and Order of this Court, copies of which will be mailed to the parties' attorneys if not picked up in the Part forthwith.

_________________________

Diane E. Lutwak, HCJ

Dated: October 23, 2019

Bronx, New York Footnotes

Footnote 1:The percentage reduction was calculated as follows: $837.39 (lease rent) - $777.16 (reduced rent) = $60.23; $60.23 = 7.2% (rounded) of $837.39.

Footnote 2:This 30% abatement, it should be noted, was simply a 30% reduction in the amount due at the time of trial. This methodology is not the one this court generally uses to calculate an abatement. Rather, this court assigns a percentage reduction based on the severity of the condition or conditions proven, applies that to the monthly rent and then multiplies that figure by the number of months during which the condition was proven to have existed.