RENT ABATEMENT - MICE & MOLD

Rogers Plaza LLC v. Sam, Date filed: 2022-03-22, Court: Civil Court, Kings, Judge: Judge Nicholas Moyne, Case Number: CV-032597-18KI:

"Defendant Sam contends that the warranty of habitability was breached. Mr. Sam testified to an infestation of vermin — mice and cockroaches — as well as the existence of mold and peeling paint. The plaintiff made unsuccessful attempts to get rid of the vermin in June and August of 2017 (Tr at p. 23-24, 46). Photos of the apartment substantiated the defendant’s claims that the warranty of habitability was breached. “The obligation of the tenant to pay rent is dependent upon the landlord’s satisfactory maintenance of the premises in habitable condition” (Park W. Mgt. Corp. v. Mitchell, 47 NY2d 316, 327 [1979]; cert denied 444 US 992 [1979]).

Furthermore, the breach of the warranty of habitability entitles the defendants to a partial rent abatement (see 501 New York LLC v. Anekwe, 14 Misc 3d 129(A) [App Term 2d Dept 2006] [40 percent rent abatement for vermin infestation and other violations]; see also Morrisania Apartments, LLC v. Rivera, 57 Misc 3d 141(A) [App Term 1st Dept 2017]). “In ascertaining damages, the finder of fact must weigh the severity of the violation and duration of the conditions giving rise to the breach as well as the effectiveness of steps taken by the landlord to abate those conditions” (Park W. Mgt. Corp., supra at 329). Here the conditions existed from at least June of 2017 and persisted until the defendants surrendered the apartment. The landlord’s attempts to remedy the situation were admittedly unsuccessful. The conditions were severe — the apartment was infested with rodents, cockroaches, and had mold, all of which are harmful to the health of the occupants. These conditions ultimately resulted in the defendants vacating the property. Accordingly, the defendants are entitled to a rent abatement of 30 percent of the rent for each of the months of July, August, September, October, and November of 2017. As the defendants paid the full rent for July and August, they are entitled to a credit in the amount of the abatement for each of those months — an overpayment of $645 per month. For the months of September, October, and November 2017, the petitioner is only entitled to rent at the discounted rate of $1505 per month."