Wallace 18 LLC v Tucker

[*1] Wallace 18 LLC v Tucker 2020 NY Slip Op 50031(U) Decided on January 14, 2020 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 14, 2020
Civil Court of the City of New York, Bronx County

Wallace 18 LLC, Petitioner-Landlord,

against

Leabert Tucker, Respondent-Tenant, TERRONA TUCKER, Respondent-Undertenant.



46318/2018



Petitioner's Attorney

Barbara Frankfurt, Esq.

Hertz Cherson & Rosenthal, P.C.

118-35 Queens Boulevard, 9th Floor

Forest Hills, NY 11375

(718) 261-7700

Respondent Leabert Tucker's Attorney

Madeleine Reichman, Esq.

Mobilization For Justice, Inc.

100 William Street, 6th Floor

New York, NY 10038

(212) 417-3832
Diane E. Lutwak, J.

The court is issuing this Amended Decision & Order in this nonpayment proceeding in response to Respondent's unopposed motion [FN1] returnable January 9, 2020 to resettle the court's prior Decision and Order of October 28, 2019 after trial, which motion is hereby granted. The court inadvertently omitted the sum of $219.20 from the money judgment it granted to [*2]Respondent Leabert Tucker in that earlier Decision and Order, which, as set forth in greater detail below, represents Respondent's costs for appearing ready for a scheduled trial on July 1, 2019 when the court granted Petitioner's application for an adjournment.

This nonpayment proceeding was commenced by Wallace 18 LLC (Petitioner) seeking to recover possession of Apartment 3C at 3035 Wallace Avenue, Bronx, New York 10467 (the subject premises) based on the allegation that Respondents Leabert Tucker and Terrona Tucker (Respondents) failed to pay past due rent. The petition, dated August 28, 2018, alleges that Respondents' tenancy is subject to the rent stabilization law and a written lease agreement to pay rent of $1759.22 per month. The petition seeks arrears of $7518.44 comprised of rent at the monthly rate of $975 for the months of March 2018 through June 2018 and $1759.22 for the months of July and August 2018.

Respondent Leabert Tucker [FN2] filed an answer on September 24, 2018, prior to securing legal representation, asserting defenses of conditions in the apartment and/or building and a "general denial". Respondent also wrote in on his answer form, "I do not owe the amount being claimed. I was withholding rent because of the repairs needed in the apartment." On the initial court date, October 1, 2018, the case was adjourned to November 26 for settlement or trial. On November 26 Respondent appeared by counsel and the case was adjourned for settlement, motion practice or trial to January 14, 2019, in a written stipulation that included a briefing schedule for Respondent's motion. Respondent's counsel served a motion on December 18 seeking leave to amend Respondent's answer and, based on Respondent's allegation that he had never agreed to pay a rent of $1759.22, dismissal of the proceeding due to a defective rent demand and misrepresentation in the petition of the amount of Respondent's monthly rent. The proposed amended answer included as a second affirmative defense the claim that there is no written lease agreement between the parties for a monthly rent of $1759.22.

On January 14 Respondent's motion was adjourned by written stipulation to March 5, 2019 for Petitioner to serve opposition or for settlement and for Petitioner "to inspect and repair as required by law: alleged garbage in front of Respondent's front door." Petitioner did not serve and file any opposition to Respondent's motion, which the court granted by Decision and Order dated March 6, 2019. In addition to allowing Respondent to amend his answer and dismissing the petition based on Respondent's unopposed assertion that he never agreed to pay a monthly rent of $1759.22, the court ordered Petitioner to file an answer to Respondent's counterclaims by March 29 and adjourned the proceeding to May 1 for a trial on Respondent's counterclaims.

On May 1 the court noted on the file jacket that Petitioner interposed a "General Denial" to Respondent's counterclaims and sent the case out to Part X for assignment to a trial part. At a pre-trial conference in Trial Part T on May 23 the case was adjourned to July 1 for trial on Respondent's counterclaims. Petitioner then retained new counsel and filed a "Consent to Change Attorney" form dated May 24. On July 1, at Petitioner's request, and over the objection of Respondent who was ready to proceed, the trial was adjourned to September 20, 2019. The court ordered Petitioner to pay Respondent's costs for coming to court that day and the parties entered into a stipulation listing the following eight conditions for Petitioner "to inspect and repair, as required by law" with access scheduled for July 13 and July 20:

(1) Rodent infestation

(2) Roach infestation

(3) Living room & hallway floorboards squeak

(4) Living room ceiling repaired in unworkmanlike manner (not properly plastered, sanded and painted)

(5) Living room walls have water marks/stains, mold

(6) Hall closet ceiling and walls have water marks/leak stains, mold

(7) Kitchen ceiling/walls repaired in unworkmanlike manner (not properly plastered, sanded and painted)

(8) Bathroom walls repaired in unworkmanlike manner (not properly painted)

The stipulation gave Petitioner another opportunity to serve a written answer to Respondent's counterclaims and, regarding the court's order that Petitioner must pay Respondent's costs for coming to court that day, provided, "Resp to present proof of actual costs to Petitioner's counsel by 7/8. Check from Pet. to Resp for costs by 7/15. If amount is in dispute, the Court shall decide."

TRIAL

On September 20, 2019, Petitioner's counsel requested an adjournment of the trial because neither Petitioner's managing agent nor superintendent were present. No reason was presented for their absence other than that the superintendent did not respond to the subpoena he was served with and that the property manager had left the company a month earlier and would need to be subpoenaed. Petitioner gave no prior notice to Respondent's counsel and/or the court that another adjournment of the trial would be requested. The court denied the request and the trial commenced and concluded that day; Respondent was the only witness.

Respondent testified that he has lived in his one-bedroom apartment since 2009. The conditions he testified about all date back to 2012 or 2013 and consisted of water leaks through the ceilings of his living room, kitchen, bathroom and closets; infestations of rodents and cockroaches; a noisy refrigerator; and a defective electrical outlet in the kitchen. Some repairs have been done since this proceeding started.

Water Leaks

The water leaks had been going on for "quite some time, back to 2012." Respondent testified that initially he noticed that the walls "would turn color" and he did not understand why. Then there were three incidents in 2018 when significant quantities of water poured into Respondent's apartment from the apartment above:

(1) First, on March 23, 2018, Respondent awoke around 2:00 a.m. because he thought he heard rain falling in his apartment. He turned the light on and saw "water coming down like a stream through the light fixture." He called 911 and the fire department came and turned off the electricity. Respondent testified, "The leak was coming from the apartment above. The fire department found a guy, the tenant, hiding in the closet, after they broken down the door." Respondent also called the super, Oscar, who "said he would call the office to let them know." A video Respondent took that night of water pouring through the ceiling fixture in his living room was admitted into evidence. Respondent sent Petitioner a letter dated March 25, 2018, which was admitted into evidence over objection, advising that, "further to my conversations with 2 of your Managers, Issa and Peter", he would be withholding his rent "until the issues discussed have been effectively addressed." The letter mentions "repeated requests for repair and [*3]for you to address among other issues, the leaking problem that I have been having", which "you have flatly refused and ignored my requests going back to 2014."(2) Second, on April 17, 2018, Respondent came home from work to find that the living room ceiling had collapsed onto the floor. He called 911 and firefighters and police responded. Firefighters "tested the integrity of the ceiling" and pulled down the loose parts. Respondent also called the super who called Petitioner's management office and told them what had happened. Two videos Respondent took on April 17 were admitted into evidence: The first was taken after entering the apartment and seeing the damage, with the super present; the super can be seen and heard talking on the telephone and saying, "Let me send you the pictures it's a lot of leaks I'm telling you, six times, six times it's a lot of water running, a lot of water running." The second video Respondent took after the fire department arrived, and shows firefighters pulling down pieces of the ceiling with their tools. Five photographs Respondent took that same day of the living room ceiling and debris were also admitted into evidence.(3) Third, in May 2018, was a heavy water flow into Respondent's bathroom. Respondent testified that he "heard a hissing coming from the bathroom". A video Respondent took of this was admitted into evidence, and he identified the sound of a doorbell near the end of the video that he testified was the super at the door "when the water was running." The super "immediately turned the water off and set up a time to make repairs."

After the incident on April 17 Respondent left the apartment and stayed with a family member for a week "because of all the muck and mold and debris." He returned after a week because "it was a temporary situation, I could not stay there for an extended period of time. The things I need to work with are at my house and I had to get back to my house." When he returned, no repairs had been done and a piece of plastic had been taped over the holes in the living room ceiling. Photographs Respondent took after returning to the apartment in April 2018 of the plastic taped to the ceiling and the mold in the closet, kitchen, bathroom and hallway were admitted into evidence.

Respondent immediately filed an "HP Action" in Housing Court, and the court took judicial notice of HP Action # 22416/2018, filed with the court on April 23, 2018 and made returnable May 16, 2018. An "Open Violation Summary Report" from the New York City Department of Housing Preservation and Development (HPD) dated May 8, 2018 in that court file reflects that eight violations were reported on May 5, 2018 and that all but one were certified as corrected on May 7, 2018.

A Stipulation was entered into on May 16 by the tenant pro se, the landlord by counsel and HPD by counsel in which the landlord agreed to correct the one violation listed on the inspection report: "Repair the broken or defective plastered surfaces + paint in a uniform color ceiling in the private hallway." The stipulation also notes that the tenant "claims that all other violations from inspection report have been corrected" and that "his refrigerator makes loud noises + shakes." The parties agreed to access dates for repairs and the case was adjourned to June 11, 2018 when it was dismissed due to nonappearance of the tenant.

Respondent also offered into evidence a certified copy of a "Closed Violation Summary Report" dated September 17, 2019 showing that all eight of the violations reported on May 5, 2018 in the HP Action had been certified as corrected. The report also shows that three other violations that were reported on May 2, 2018 — including "C" violations for infestations of mice [*4]and roaches — had been certified as corrected.

Respondent testified that a week after he started the HP Action Petitioner started making repairs. The hole was closed, but the work was poorly done and there are still water stains, and "obvious evidence of damage". More recently, in August 2019, the apartment was painted but Respondent testified that the work was poorly done, there was no sanding and they just "slapped paint over the area". Respondent testified that because of the constant leaking there has been mold and water stains all over the apartment in the living room, bathroom, kitchen and closets. The mold was remedied "sometime this year when this case started proceeding through the courts", maybe in July or August of 2019.

Respondent also filed a complaint of decreased services with the New York State Division of Housing and Community Renewal (DHCR) on May 16, 2018, and a certified copy of the DHCR's "Order Reducing Rent for Rent Stabilized Tenant(s)" issued on December 20, 2018 following an inspection on December 11, 2018 was admitted into evidence. That Order found that "LEAKS/STAINS APT WIDE" existed, and noted the following evidence of leaks/stains:

(A) Living room walls have water marks/s[ta]ins running down the walls (entry from the hall/foyer).(B) Living room ceiling was repaired in an unworkmanlike manner, it is not properly plastered, sanded and painted.(C) Kitchen ceiling/walls were repaired in an unwork[m]anlike manner, it is not properly plastered, sanded and painted.(D) The ceiling/walls of the hall closet near the bathroom have leaks/stains.(E) Bathroom ceiling/walls were repaired in an unworkmanlike manner, it is not properly plastered, sanded and painted.

The Order also noted that the refrigerator and kitchen electric outlet were working properly and there was no evidence of mold in the kitchen, bathroom or closets throughout the apartment. The Order reduces the rent to the level in effect prior to the most recent increase; however, Respondent testified that Petitioner has ignored this Order and continues to bill him at the same monthly rent amount, $975.00.

Property Damage

Respondent testified that the water leaks caused him to lose books, clothes, contents of closets, couches, TV, computer, cell phones and wedding pictures. When he filed the HP Action he thought he would get compensation for the property damage that was caused by the water leaks. However, he learned when he went to court that he would have to file a separate action in Civil Court for his damages, which he did, right away. That case ended in a settlement for $5,000; he signed a one-page "Release" form dated November 10, 2018 which was admitted into evidence and which includes the following language:

1. Release. This Release applies to claims resulting from anything which has happened up to now. I specifically release the following: Any and all claims including but not limited to property damage, lost wages, loss of use of property and any other claims arising from a water damage incident and/or alleged breach of lease occurring on or about April 17, 2018 at 3035 Wallace Avenue, Bronx, New York and any and all claims that were or could have been made in a lawsuit entitled LEABERT TUCKER v. ROBERT KHOMARIE and EVAN ROBERTS, Index No.: CV-009969-18/BX, Civil Court of the City of New York, Bronx County.This Release and the underlying settlement do not affect an eviction proceeding now [*5]pending in Landlord-Tenant Court.

Respondent testified that he was unrepresented in that proceeding, that the "Release" form was drafted by Petitioner's attorneys and, pointing to the last sentence of the above-quoted section of the form, that he understood that the settlement of that damages action did not affect his rent abatement claim in this nonpayment eviction proceeding.

Infestations of Rodents and Cockroaches

Respondent testified that he has seen rats and mice in the kitchen and living room dating back to 2013. He is not home during the day, but when he turns the light on upon returning home from work he sees them, "maybe once a week." The super has given him glue traps, twice since 2013. A photograph of a dead rodent in a glue trap taken in early 2019 was admitted into evidence.

Respondent's apartment also has had roaches since 2013 or 2014 in the bathroom, closet, kitchen and living room. He sees them running when he turns the light on. Respondent "constantly buy[s] roach spray", at least one $5.00 can per month. The super gave him something to control the roaches recently, this past July or August.

Defective Refrigerator

Respondent testified that from 2013 until it was replaced in July 2019 his refrigerator "made a loud, constant noise, like an airplane or helicopter, the noise is so much it wakes me up when I sleep." Twice since 2013 Petitioner sent someone over to look at the refrigerator, and one time, in May 2018, Respondent took a video which was admitted into evidence in which he can be heard talking with a technician. A second video Respondent took of the refrigerator in September 2018 in which the noise can be heard was also admitted into evidence. While the DHCR Rent Reduction Order includes "Refrigerator Condition" on the list of "Services Maintained" as of the DHCR's December 20, 2018 inspection, and it is not included on the parties' Stipulation of July 1, 2019, a certified copy of an HPD "Open Violation Summary Report" dated September 17, 2019 that was admitted into evidence reflects one open violation at that time, for a "defective rubber gasket on refrigerator door" that had been reported on May 2, 2019 and had a "Certification Status" of "Overdue".

Defective Electric Outlet in Kitchen

Respondent testified that the electrical outlet in his kitchen was defective and had exposed wires from 2013 until July 2019 when it was fixed. When he tried to use the outlet it would spark, so he ran a cord from another outlet in another room when he wanted to run an appliance in the kitchen. HPD placed a violation for the outlet on May 5, 2018 but the DHCR Rent Reduction Order includes "Electric Outlet Kitchen" on the list of "Services Maintained" as of the DHCR'S December 20, 2018 inspection. It is not included on the parties' Stipulation of July 1, 2019 as an item to be repaired.

Notice to Petitioner

Respondent notified Petitioner in writing of the water leaks in a letter dated March 25, 2019. Respondent also called "311" repeatedly and testified that "every time there was an issue I would call 311 and file a violation." The filing of an HP Action on April 23, 2018 and subsequent issuance by HPD of violations also constituted written notice, as did the filing of a complaint of reduced services with the DHCR on May 16, 2018 and subsequent Rent Reduction Order dated December 20, 2018.

The July 1, 2019 Stipulation adjourning the trial of this proceeding gave Petitioner written notice that the vermin infestations, water stains on the walls and ceilings of the living [*6]room, kitchen, bathroom and hall closet were still a problem and notified Petitioner of a new problem of squeaky floorboards in the living room and hallway.

Further, Respondent testified that he has constantly complained to the super and to the management office about all of the conditions in his apartment and that "management and super are aware". Oscar has been the super since 2009 and lives in the building. Respondent sees him frequently and tells him about the problems in his apartment; "most times his response is that he will call the office and usually that's where it ends."

Effect of Conditions on Quality of Life

The water leaks and the collapsed living room ceiling have caused Respondent a lot of anxiety, affecting his sleep and work and interfering with his ability to have family or friends over. The rodent and cockroach infestations also are an embarrassment, they interfere with Respondent's ability to have people over and cause him to worry about contamination to his food and their effect on his health. The noisy refrigerator interfered with Respondent's sleep which interfered with his work. The defective electric outlet in the kitchen was a fire hazard.

Costs for Adjournment of July 1, 2019 Trial Date

Respondent testified that he missed "an entire day's wage" on July 1, 2019 when he came to court in this proceeding ready for trial only to have the case adjourned at Petitioner's request. The daily rate for his salary was calculated at $219.20.

DISCUSSION

As a preliminary matter, the November 20, 2018 Release which settled Respondent's Civil Court action against Petitioner for the damages he suffered "arising from a water damage incident" on April 17, 2018 does not bar this court from awarding Respondent a rent abatement on his counterclaims. As explained by the Appellate Division, First, Department, "It has long been the law that 'where a release contains a recital of a particular claim, obligation or controversy and there is nothing on the face of the instrument other than general words of release to show that anything more than the matters particularly specified was intended to be discharged, the general words of release are deemed to be limited thereby' (Mitchell v Mitchell, 170 App Div 452, 456, 156 NYS 76, 16 Mills 51 [1915]; see also Haskell v Miller, 221 App Div 48, 222 NYS 619 [1927], affd 246 NY 618, 159 NE 675 [1927])." Morales v Solomon Mgt Co, LLC (38 AD3d 381, 382, 832 NYS2d 195, 196-197 [1st Dep't 2007]).

The Release between the parties herein, drafted by Petitioner's attorney, specifically references the Civil Court action, Leabert Tucker v Wallace 18 LLC, Robert Khomarie and Evan Roberts, Index No. CV-009969-18/BX, and includes the following language: "This Release and the underlying settlement, do not affect an eviction proceeding now pending in Landlord-Tenant Court." Accordingly, this court is not precluded by that Release from determining whether Petitioner breached the warranty of habitability due to that same incident and, if so, whether a rent abatement is warranted.

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, "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 [*7]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."

To establish liability, a tenant must show that the landlord had actual or constructive notice of the breach of the warranty of habitability. Nachajski v Siwiec (31 Misc 3d 150[A], 934 NYS2d 35 [App Term 2nd Dep't 2011])(affirming lower court's determination after trial that tenant had failed to establish her defense of breach of the warranty of habitability because, among other things, she had failed to notify landlords of the alleged conditions needing repair).

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]). 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 a habitable condition. Id.

The Court draws a negative inference from the fact that Petitioner failed to put on any rebuttal testimony. "Where an adversary withholds evidence in his possession or control that would be likely to support his version of the case, the strongest inferences may be drawn against him which the opposing evidence in the record permits." Noce v Kaufman (2 NY2d 347, 353, 141 NE2d 529, 531, 161 NYS2d 1, 5 [1957]). The only explanation Petitioner's counsel provided for the absence of any rebuttal witnesses was that Petitioner's superintendent failed to respond to a subpoena and the person who was the property manager until a month ago prior to trial was no longer with the company and would need to be subpoenaed. A negative inference may be drawn from the absence of reasonably anticipated testimony when there is some independent evidence presented which allows the court to make such an inference. "It is well recognized that the finder of fact may not speculate as to what the witness would testify to had he or she been called. The rule is that the finder of fact 'may construe the evidence already in the case most strongly against the party who might have called the witness to contradict or explain that evidence' (Richardson, Evidence [10th ed], § 92; emphasis added)." Jarrett v Madifari (67 AD2d 396, 408, 415 NYS2d 644, 651 [1st Dep't 1979]); and see generally, ST Owner, LP v Novog (31 Misc 3d 680, 921 NYS2d 814 [Civ Ct NY Co 2011]).

Here, Respondent established by a preponderance of the credible evidence that Petitioner breached the warranty of habitability with respect to the subject premises and that his health and safety were detrimentally affected by water leaks, infestations of mice and cockroaches, a defective electrical outlet in the kitchen and a defective refrigerator. The time frame for which this court can award an abatement begins with March 2018, when Respondent sent Petitioner a letter referencing "among other issues, the leaking problem". While Respondent testified that each of these problems dated back to 2012, 2013 and/or 2014, his testimony was conclusory and unsupported by written or otherwise proven notice to the landlord, photographs, videos, records of complaints made to government agencies or any violations issued by any such agencies dated prior to March 2018.

Courts have awarded a broad spectrum of abatements for water leaks, depending upon the facts of the case. See, e.g., Westhattan Corp v Wong (42 Misc 3d 130[A], 984 NYS2d 635 [App Term 1st Dep't 2013]); 13 E 9th St LLC v Seelig (63 Misc 3d 1218[A][Civ Ct NY Co 2019]); De Socio v 136 E 56th St Owners (2018 NYLJ LEXIS 3865 [Civ Ct NY Co 2018]) and cases cited therein; Sargent Realty Corp v Vizzini (101 Misc 2d 763, 421 NYS2d 963 [Civ Ct NY Co 1979]); and see Heights 170 LLC v York (29 Misc 3d 183[A], 920 NYS2d 241 [App Term 1st Dep't 2010]); 3 Green Street, LLC v Caceres (63 Misc 3d 1231[A][Justice Ct, Village of Hastings-on-Hudson, Westch Co 2019]); Spatz v Axelrod Management Co, Inc (165 Misc 2d 759, 630 NYS2d 461 [City Ct, Yonkers, Westch Co 1995]).

Here, the evidence established that there was a significant water leak into Respondent's living room in mid-March 2018, another one in mid-April 2018 that caused the living room ceiling to cave in and Respondent to vacate the premises for a week and a third one in Respondent's bathroom in May 2018. Petitioner made repairs, and by the May 16, 2018 return date of Respondent's HP Action it was only Respondent's hallway that still needed to be repaired; however, the DHCR found at an inspection on December 20, 2018 that the repairs had been made in an "unworkmanlike" manner and there were still water-stained walls and ceilings in the living room, kitchen and bathroom as of the date. Further, Respondent testified at trial on September 20, 2019 that while the mold had been abated in July or August 2019, there were still water stains on the walls and ceilings in his apartment. Accordingly, for the water leaks and resulting damage to the walls and ceilings of the apartment, the court awards Respondent a 100% abatement for the one week at the end of March 2018 that he had to vacate the apartment; a 25% abatement for the two months of April and May 2018 during which Respondent had to file and litigate an HP Action to secure repairs; and a 10% abatement for the 16 months of June 2018 through September 2019 during which Respondent has had to live with water stains and unworkmanlike repairs to his walls and ceilings throughout the apartment.

Regarding the infestations of rodents and cockroaches, while the "Closed Violation Summary Report" shows that "C" violations for these conditions were reported on May 2, 2018 and certified as corrected on May 28, 2019, they were included in the parties' Stipulation of July 1, 2019 and Respondent testified credibly at trial on September 20, 2019 that the conditions still existed. Accordingly, the Court awards a 5% abatement of the rent for the 17 months of May 2018 through September 2019 for the vermin infestations. See, e.g., Maxwell Dev, LP v France (61 Misc 3d 1221[A][Civ Ct NY Co 2018]).

Regarding the noisy refrigerator and the defective electric outlet which Respondent described in detail and that were addressed by the time of the July 1, 2019 Stipulation of the parties, the court awards an additional 5% abatement for the period of 14-month May 2018 through June 2019. While the DHCR, HPD and HP Action records present conflicting information about these conditions, in light of Respondent's credible testimony and the negative inference to be drawn from the absence of any rebuttal testimony from Petitioner, an abatement is warranted.

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 [*8]2003]). Here, where no evidence was provided as to the amount of the DHCR's rent reduction, and Petitioner continued to bill Respondent at the same rate before and after the issuance of the DHCR's Order, the court will not reduce the amount of the abatement.

In addition to an abatement, the court also orders Petitioner to investigate and repair as required by law any conditions listed in the DHCR's Rent Reduction Order and on HPD's website that have not yet been corrected. All repairs to be completed by November 30, 2019.

Finally, Respondent is entitled to a judgment for the additional sum of $219.20, representing Respondent's costs for coming to court on July 1, 2019 ready for trial only to have the case adjourned upon the request of Petitioner's counsel, who had taken over representation from Petitioner's prior counsel case on May 24, 2019 and cited the need for additional time to prepare. This court already did on July 1 order Petitioner to pay those costs, as that trial date had been agreed upon and set aside by both sides and the court over five weeks earlier, on May 23, 2019, and Petitioner's newly-retained counsel as of the next day (May 24) had made no attempt to contact Respondent's counsel prior to July 1 to seek a consent adjournment of the trial. The parties through counsel stipulated in writing on July 1 that Petitioner would pay Respondent's costs forthwith unless the amount was in dispute in which case "the Court shall decide". The court credits Respondent's testimony that he lost wages of $219.20 on July 1, and this undisputed amount shall be added to the judgment.

CONCLUSION

Accordingly, Respondent Leabert Tucker is entitled to a money judgment of $4,003.12 comprised of the $219.20 in costs as set forth above for his appearance on July 1, 2019 when the court granted Petitioner's request for an adjournment plus $3783.92 on his counterclaim for breach of the warranty of habitability calculated as follows:

• 100% abatement x 1 week ($225.17 [FN3]); • 25% abatement x 2 months ($243.75 x 2 = $487.50);• 10% abatement x 16 months ($97.50 x 16 = $1560);• 5% abatement x 17 months ($48.75 x 17 = $828.75);• 5% abatement x 14 months ($48.75 x 14 = $682.50).

This constitutes the Decision and Order of this Court, copies of which will be emailed to the appearing parties' respective counsel.

_________________________

Diane E. Lutwak, HCJ

Dated: January 14, 2020

Bronx, New York Footnotes

Footnote 1:As required by CPLR 2219(A), the court notes that it considered the following papers in the review of Respondent's unopposed motion: (1) Respondent's Order to Show Cause ("OSC"); (2) Attorney Affirmation dated December 20, 2019 in support of OSC; (3) Memorandum of Law in Support of OSC; (4) Documents attached as Exhibits A through D in support of OSC comprised of copies of: the Petition; Decision and Order of March 6, 2019 granting Respondent Leabert Tucker's motion for leave to amend his answer and dismissal of the petition; Stipulation dated July 1, 2019; Decision and Order of October 28, 2019 after trial granting Respondent a money judgment for $3783.92 on his counterclaim for breach of the warranty of habitability.

Footnote 2:As Respondent Terrona Tucker has never appeared or answered, all references herein to "Respondent" refer to Leabert Tucker.

Footnote 3:This amount is calculated by dividing the monthly rent rate of $975 by 4.33.