MORE ON RENT ABATEMENT FOR BREACH OF WARRANTY OF HABITABILITY

Here the lack of evidence, plus tenant's own misconduct, led to an 11% abatement but the case has an excellent discussion of the law.

Maxwell Dev. LP v. France, NYLJ 12/19/18, Date filed: 2018-11-01/Court: Civil Court, New York/Judge: Judge Dakota Ramseur/Case Number: LT-083272-17:

Respondent asserted a defense to nonpayment of Petitioner’s breach of the warranty of habitability. In every lease for residential property, the warranty of habitability implies a covenant that the premises rented and all common areas are fit for human habitation and for the uses reasonably intended by the parties, and free from conditions dangerous to life, health, or safety (Real Property Law [RPL] §235-b[1]; Scherer/Fisher, Residential Landlord Tenant L. in N.Y., §12:65). Breach of this warranty can be the basis of a defense to a nonpayment proceeding or support a separate affirmative claim (id.).

The proper measure of damages for a breach of the warranty of habitability is the difference between the fair market value of the premises in fully habitable condition, as measured by the rent reserved under the lease, and the value of the premises during the period of the breach (Park W. Mgt. Corp. v. Mitchell, 47 NY2d 316, 329 [1979]). 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 summary nonpayment proceeding in which the tenant counterclaims or pleads as a defense breach by the landlord of his duty to maintain the premises in habitable condition (Park W. Mgt. Corp., 47 NY2d at 329).

Complete vacatur is not necessary to receive an abatement; it is sufficient to have been constructively evicted from a portion of the premises (Minjak Co. v. Randolph, 140 AD2d 245, 248 [1st Dept 1988]). The finder of fact must weigh the severity and duration of the breach, as well as the effectiveness of steps taken by the landlord to abate those conditions (id.). In determining the amount of damages sustained by a tenant as a result of a breach of the warranty set forth in the section, the court “need not require any expert testimony” (RPL §235-b; see also Park W. Mgt. Corp., 47 NY2d at 329-30).

Courts have awarded a broad spectrum of abatements, including upward modification of lower court determinations, total abatements, and nominal damage awards (Dumbadze v. Saxon Hall Owner, LLC, 93 AD3d 756, 757 [2d Dept 2012] [increasing 10 percent abatement to 25 percent where plaintiff's evidence demonstrated recurring issue with "bubbles" forming on ceiling in bedroom and living room and at least one instance of ceiling collapse in bedroom which caused injuries]; Westhattan Corp. v. Wong, 42 Misc 3d 130(A) [App Term 1st Dept 2013] [affirming trial court's dismissal of nonpayment petition and award of damages on tenant's counterclaims where record evidenced recurrent leaks over a three-year period resulting in at least one ceiling collapse, rodent infestation, a broken door and window, and persistent heating problems, all of which landlord had notice of]; Mayourian v. Tanaka, 188 Misc 2d 278, 279 [App Term 2d Dept 2001] [100 percent abatement when relocation of dumpster in front of property resulted in odor which prevented enjoyment of deck or company of friends]; Ocean Rock Associates v. Cruz, 66 AD2d 878 [2d Dept 1978], aff’d, 51 NY2d 1001 [1980] [100 percent abatement affirmed where substantial deprivations existed, including inadequate heat for extended periods of time]; 162 BSD Realty LLC v. Ross, 11/26/2008 NYLJ 30, col. 1 [Civ Ct Kings County] [100 percent abatement for cascading water leak, vermin infestation, exposed electrical wirings and other "hazardous conditions," as well as $1,500 award for cost of tenant's repairs]; Rosier v. Brown, 158 Misc 2d 748, 752 [NY City Ct, Rochester 1993] [68 percent abatement granted for lack of working smoke detectors, damaged lock, and waste line leak in basement]; Tonetti v. Penati, 48 AD2d 25, 27 [2d Dept 1975] [affirming trial court's determination that a strong canine odor justified tenant's vacatur after one month where landlord had guaranteed, incorrectly, that odor would be remedied by cleaning]). In some instances, courts have awarded nothing or nominal damages (see Kekllas v. Saddy, 88 Misc 2d 1042, 1046 [NY Dist Ct Nassau County 1976] [awarding nominal abatement of six cents for cat odor where tenant's proof of damages was insufficient]; cf Toomer v. Higgins, 161 AD2d 347 [1st Dept 1990] [no abatement for interruption of heat on seven occasions over one month where the interruption was necessary to service and adjust newly-installed boiler equipment and, in each case, was promptly remedied]; cf Solow v. Wellner, 86 NY2d 582, 586 [1995] [reversing civil court's abatement award where defects related only to convenience and amenities, not conditions such as worn carpets and non-extreme garbage accumulation which do not "constitute deficiencies that prevent the premises from serving their intended function of residential occupation"]).

Indeed, varying abatements have been granted for conditions similar to those alleged here (Elijah Jermaine, LLC v. Boyd, 5 Misc 3d 131(A) [App Term 1st Dept 2004] [awarding 15 percent abatement for unremedied "rodent infestation and other defective conditions"]; Bender v. Green, 24 Misc 3d 174, 185 [Civ Ct NY County 2009] [awarding a 12 percent abatement for bedbugs]; 1097 Holding LLC v. Ballesteros, 17 Misc 3d 1111(A) [Civ Ct Bronx County 2007] [awarding 25 percent abatement where Respondents observed roaches and rats in entire apartment and "…heard rats cracking and biting, so loudly that they initially thought someone was trying to break into their apartment and called the police. The police arrived, pulled the stove from the wall and discovered rats hiding behind the wall."]). Respondent alleges five defects here to justify an abatement: lack of heat/window problems, lack of a working intercom, a rodent and insect infestation, holes in the wall as a result of that infestation, and a non-functioning toilet. As an initial matter, the record does not corroborate Respondent’s contention that he lacked heat or proper windows during the subject time period.

Conversely, Respondent’s testimony that his intercom was partially repaired is corroborated by HPD records evidencing a continuing defect (see p 4, supra). To the extent, however, that there is nothing in the record demonstrating the impact of that defect, Respondent is entitled only to a nominal abatement of 1 percent (Pena v. Lockenwitz, 53 Misc 3d 428, 433 [NY City Ct Cohoes County 2016] ["The existence of a code violation does not automatically translate into a breach of the warranty of habitability; rather, once a code violation has been shown, the tenant must come forward with evidence concerning the extensiveness of the breach, the manner on which it impacted upon the health, safety or welfare of the tenants"], quoting 211 E 46th Owners LLC v. Mohabir, 33 Misc.3d 1232(A), 2011 WL 6141671 [Civ Ct NY County 2011]). Similarly, the record supports an insect and rodent infestation. However, there is insufficient evidence in the record from which the Court can deduce any substantial impact upon the Apartment’s value, including the presence of insects or rodents in the Apartment proper, other than the holes in the wall caused by Respondent’s dogs. Accordingly, the record merits a 10 percent abatement (cf Bender, 24 Misc 3d at 185 [tenant kept log of bedbug bites]; cf 1097 Holding LLC, 17 Misc 3d 1111(A) [25 percent abatement where Respondents observed roaches and rats in entire apartment]).

However, a tenant’s misconduct can reduce or entirely preclude an abatement (RPL §235-b[1]). Case law defining “tenant misconduct” is sparse in New York (5th & 106th St. Assoc. LP v. Rodriguez, 21 Misc 3d 1133(A) [Civ Ct NY County 2008]). It includes, however, denial of access to correct conditions, rent abatements will be denied or severely limited (Marz Realty Inc. v. Reichman, 2003 WL 1907665 [App Term 2003 2d & 11th Jud Dists] [15 percent abatement affirmed where "landlord promptly attempted to repair same and was denied access"]; W. 122nd St. Assoc., L.P. v. Gibson, 5 Misc 3d 137(A) [App Term 1st Dept 2004] [affirming judgment in favor of landlord where tenant "impeded landlord's ability to complete painting work agreed upon"]; 5th & 106th St. Assoc. LP v. Rodriguez, 21 Misc 3d 1133(A) [Civ Ct NY County 2008] [no abatement where clutter in apartment and respondent's absence from apartment complicated access and repair]; Scherer/Fisher, Residential Landlord Tenant L. in N.Y. §12:115 [collecting cases]). Case law involving affirmative misconduct is rarer still, but at least one recent case confirms that conduct contributing to the defective condition can preclude an abatement (see 12-14 E. 64th Owners Corp. v. Hixon, 130 AD3d 425, 426 [1st Dept 2015] [affirming denial of abatement where tenant made repairs herself without the proper application and failed to pay an escrow deposit for repairs]).

The sparsity of case law notwithstanding, the Court holds that flushing bones down the toilet — whether chicken, ham, or any other animal — is objectively unreasonable conduct precluding an abatement for that condition. It should be noted that after the first four toilet clogs, Petitioner’s superintendent arrived promptly to remedy the condition. At minimum, after the first clog, and certainly after the second or third, Respondent was on notice to dispose of any bones in a reasonable manner — that is, not in the toilet.

Accordingly, Petitioner has demonstrated entitlement to judgment in the amount of $2,130.00, representing Respondent’s share of the rent from November 2017 through August 2018, less an 11 percent aggregate abatement during that timeframe, totaling $1,895.70.