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."

PROOF NEEDED WHEN SEEKING RENT ABATEMENT

Stefanis v. Cavicchio, Date filed: 2022-03-10, Court: City Court, Westchester, Judge: Judge Karen Best, Case Number: LT-0986-21:

"The Court then turns to Respondents claims regarding the alleged breach of the warranty of habitability. In every lease there is an implied warranty that the premises “are fit for human habitation and for the uses reasonably intended by the parties.” RPL §235-b. It mandates that “[t]he occupants of such premises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety.” Id.

The purpose of the warranty of habitability is to compensate tenants for living in an uninhabitable residence. See, Halkedis v. Two E. End Ave. Apt Corp., 161 A.D.2d 281 (1st Dept., 1990); Alder v. Ogden CAP Props, LLC, 42 Misc.3d 613 (N.Y. Sup. Ct., 2013). Respondents alleged they continuously resided in the subject premises during the entire period from July 20, 2020 through December 1, 2021. Respondents contend they were without a gas stove for the duration of this tenancy and do not deny that they ceased paying rent on or about July 2021 through November 2021.

Damages for a breach of the warranty of habitability are calculated as “the difference between the fair market value of the premise 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, 47 N.Y. 2d 316, 327 (1979). Any such award may be in a plenary action or a reduction of the contracted-for rent as a setoff in a summary nonpayment proceeding for which the respondent counterclaims, as is the case here. The Court may consider the period of the breach, the severity of the defects, the impact on the tenant’s living and the efforts made by the landlord to remedy same. Id.

The Court does not find Respondent’s testimony regarding the duration of her lack of gas to be credible. Respondent’s testimony that she spent hundreds of dollars per month for over one year without a stove was unsupported and Respondent’s testimony lacked sufficient detail regarding the extensiveness of the breach and the impact it had on her health, safety, or welfare. These deficiencies do not preclude Petitioner’s liability for breach of the warranty of habitability, however, the amount of damages or the abatement awarded herein is impacted.

Due to the incomplete testimony and lack of evidence in support, the Court is constrained to find that Respondent has failed to provide sufficient facts establishing the dates, duration, and intensity of the conditions at the property to enable the Court to quantify an abatement for leaks which allegedly existed for some time in the subject premises. 195-24 LLC v. Titus, 52 Misc. 3d 134 [A] (App. Term., 2nd Dept., 2nd, 11th & 13th Dist., 2016). However, Respondents did submit credible evidence in the form of photographs and video which Petitioner did not rebut. Respondents further alleged that the conditions were never rectified. Thus, the Court concludes that same existed from August 23, 2021 through the remainder of Respondents tenancy, November 30, 2021.

The Respondents are entitled to an abatement for the time they were living in an apartment which lacked essential services. The Court calculates an appropriate abatement to be Twenty (20 percent) Percent for the Seventeen (17) months that the subject premises was without a working stove and Five (5 percent) Percent for the water damage and leaks in the premises for the 99 days (August 23, 2021 through November 30, 2021) that the condition existed."

RENT CREDIT WHEN APARTMENT IS NOT HABITABLE DUE TO LANDLORD NEGLIGENCE

Richardson v Akelius Real Estate Mgt. LLC 2021 NY Slip Op 50788(U) Decided on August 9, 2021 Civil Court Of The City Of New York, New York County Baron, J. :

"Claimant Kemberly L. Richardson brought this small claims action against Property Manager Akelius Real Estate Management LLC (Property Manager or Akelius) and 5504-301 E. 21st Manhattan LLC (Landlord) to recover $4,277.45 for being displaced from her apartment (premises) due to building negligence after her apartment was damaged during a rainstorm on August 22, 2019. At trial claimant amended her complaint to $3,150.01, representing the 34 days she had to stay in a temporary apartment, starting from September 5, 2019, at $113.16 per day, and accounting for $697.34 in rent and relocation credits she received from the Landlord.

Defendants concede that the building contractors failed to secure an opening in the roof before the rainstorm on the night of August 22, causing "tremendous" flooding in the building, and extensive water damage to claimant's apartment (tr at 59), which necessitated prolonged construction work to the premises and claimant's 34-day relocation to a vacant apartment in her building provided by the Landlord. Defendants acknowledge that overall it took 44 days from the initial damage to the claimant's apartment to fix the premises. In December 2019 defendants were further notified that there were problems with the quality of the construction work in the apartment.

Defendants argue, nonetheless, that rent credits of 18% for the 34-day time period claimant stayed in the temporary apartment sufficiently compensated claimant for the inconvenience of having her apartment destroyed by water in the middle of the night, the 44 days the apartment was damaged, and the claimant's necessary 34-day stay in the temporary apartment. Defendants argue that the provided apartment was superior to the premises. After trial, the Court awards $3,150.01 to the claimant, representing the full amount she seeks against the Landlord as discussed below. The Court dismisses the claim against the Property Manager.

TRIAL EVIDENCE

The claimant testified that she lived in her building for nearly twenty years before the [*2]incident. On August 22, 2019, around 2:30 in the morning (tr at 9, 67-68), claimant woke up to the "sound of rushing water" (tr at 9). When she turned on the light, she saw water "pouring down" the door frames and walls throughout her 607-square-foot one-bedroom apartment and water accumulating under plaster, forming bubbles on the walls and ceilings (tr at 9-10). Claimant's mattress, box spring, other belongings and furniture were full of water. Not knowing what was going on, claimant called the doorman, and was told that there was a leak in the roof and that "there was nothing that could be done" (tr at 10). She was further instructed to "just put out buckets and towels," which she did as she was "frantically trying to catch the water" (id.). Claimant spent the rest of the night moving furniture and doing "whatever [she] could do to minimize the damage" in her apartment (id.). A few hours later she called the building manager and the Property Manager. There was no testimony that anyone from the building management went to claimant's apartment to ascertain the situation after she called for help.

It is undisputed that there was extensive flooding in the building. Jacob Washington, the Property Manager for the building (tr at 47; exhibit 5), testified that the flood was "tremendous" as it rained significantly that night (tr at 59). He acknowledged that the building has a live-in handyman and an emergency line, which Mr. Washington believed was called on the night of the storm. Mr. Washington could not say what was going on in the penthouse above claimant's apartment; he did not remember if the penthouse called the emergency line. He claimed that from his experience "it's very likely that the water would have just been dripping behind the . . . exterior of the walls and [got] down to the [claimant's] apartment below without anyone noticing" (tr at 61). Mr. Washington further testified that management was not notified of the leak inside claimant's apartment until the next morning. That morning, Mr. Washington went to the building to "look at the leak damage in multiple . . . apartments" (tr at 59-60) and "found the hole that was left uncovered" by contractors that management no longer uses (tr at 61, 76). He acknowledged that in his years at Akelius, this was the "only major leak that occurred in this fashion" (tr at 76).

In an email dated August 26, 2019, a representative of the Property Manager emailed claimant, stating, inter alia, "I've spoken to my construction manager who has given me a timeline for the repair work that will be needed. The next steps for the leak are [w]ait for effected areas to dry = 1-2 weeks . . . [s]crape damaged areas, apply plaster, wait for plaster to dry = 3 hours + overnight dry . . . [s]and and apply second coat of plaster, wait for plaster to dry = 3 hours + overnight dry . . . [s]and and paint = 1 hour" (exhibit 5). Not "realiz[ing] the extent of what was going to lie ahead" (tr at 10), claimant stayed in the apartment, "sle[eping] on the dry side of the mattress" until August 27 (tr at 10, 70). According to Mr. Washington, claimant asked to stay in her apartment, and Akelius did not want to "force" her out (tr at 70). Claimant testified that on the evening of August 27 she learned that her father passed away and that she had to leave for Boston.

In an email dated August 30, 2019, Mr. Washington told claimant that the contractors could remove damaged plaster on September 3rd to speed up the drying process and that if claimant was not at home, the "onsite staff c[ould] give the contractors access" (exhibit 6). The email asked claimant to confirm access (id.). It is undisputed that claimant allowed access to her apartment. Mr. Washington acknowledged access confirmation in an email dated September 3rd (exhibit 17). Nevertheless, claimant testified that when she returned from her trip on September [*3]4th, "everything remained the same, as it was when [she] left on "August 27th" (tr at 11). The "previously white walls had turned brown from the water damage" (id.), and "[t]here was a strong smell of dampness" (tr at 12).

The evidence indicates that work began at some point on September 4th, because in an email dated September 4, at "4:20:06 PM," to Mr. Washington, claimant stated that the "crew just about finished the extensive scraping that needed to be done" and did a "good job cleaning up the incredible amount of white dust" (exhibit 10). Claimant testified that once the work in her apartment began "it was awful" and that she had "never seen anything like this" (tr at 14). The evidence shows substantial portions of plaster removed from walls and ceiling, piles of removed plaster and paint on the floor, cracked and separating plaster and paint on the walls, ceiling and doorways throughout the apartment, and personal belongings and furniture covered in plastic. In the email dated September 4, 2019, claimant reflected on the "mess" in the apartment and indicated that she was "not comfortable staying" there under the circumstances (exhibit 10). Defendants acknowledged at trial that "[i]t would have been inconvenient to stay in [the apartment] while work was done" (tr at 52). Claimant left her apartment in the evening to stay with her sister on the Upper West Side.

While on her way to her sister's, claimant received a call from management offering her a hotel room. No meal plan was offered. Claimant declined the hotel room because it lacked a kitchen. The Property Manager then offered claimant a vacant apartment in the same building where she lived. The apartment was unfurnished and was not cleaned. Claimant testified that she had to sweep and mop the apartment. The apartment also lacked any air conditioning, which affected claimant during "days of excessive heat" (tr at 14). Although management offered to have an air conditioner installed (exhibit 12), by that point the weather had cooled down, and claimant declined the offer. The unit's washer and dryer never worked and the common laundry in the basement area of the building was out of service as well. Although the temporary unit was overall a little larger—887 square feet—and had a slightly larger kitchen, while claimant's apartment was 607 square feet, the two bedrooms in the temporary apartment were smaller than the one bedroom in claimant's apartment. Claimant testified that she felt compelled to accept the offered vacant apartment because she "was happy [she] had a place to stay" (tr at 42). Defendants acknowledge that claimant repeatedly complained that she was uncomfortable staying in the provided apartment.

Mr. Washington testified that several units were available in the building, although he did not remember how many. Nevertheless, claimant was not offered any opportunity to select an apartment where she could stay while her unit was being worked on. Mr. Washington testified that the management team made "a collective decision" on which apartment was going to be offered to claimant although he did not remember whether it was him or the supervisor who had made that decision (tr at 63). In their opinion the apartment that was selected for the claimant was "above the market rate of [claimant's apartment]" (tr at 62-63).

Mr. Washington testified that he "assumed" it would have been apparent on September 4th that it was going to take longer than the initial 14-day timeframe provided on August 26th to fix the apartment (tr at 66). He acknowledged that the provided timeline "was not correct" (tr at 54), that "as the leak damage continued to dry, [defendants] realized that it was going to be more extensive than the initial timeframe provided" and that "the water took a very long time to dry" [*4](tr at 65). Mr. Washington further testified that the work took longer because they wanted to "finish the job properly" and "didn't want to rush to fit into a timeline that had been provided without the proper knowledge" (tr at 55).

It took 34 days for claimant to move back to her apartment on October 9, 2019 after she moved out on September 4th (exhibit 20; tr at 17). Mr. Washington testified that "[defendants] did understand what an inconvenience [being displaced] obviously was" for claimant (tr at 67). However, there was no testimony indicating that management attempted to use any specialized equipment, such as floor fans, to increase the air circulation inside claimant's apartment to speed up the drying process. Mr. Washington acknowledged that it was claimant who "was running the AC unit and opening windows" (tr at 65).

After the work was completed "portions of the walls . . . bubbl[ed] up" (tr at 16), as claimant notified the Landlord by email dated December 13, 2019 (exhibit 16). The photographs admitted at trial show extensive bubbling of paint on the walls, and a large crack in the ceiling with visibly separating paint and plaster, which, according to claimant, had just occurred the night before trial (tr at 45; exhibit 16).

It is undisputed that claimant's monthly rent for her leased apartment was $3,442.10 (exhibit A). The ledger indicates that she paid full rent of $3,442.10 for August, $4,603.00 in September, and $3,099.03 in October, totaling $11,144.13 (exhibit F), which is $817.83 more than if she had paid the contracted-for rent of $3,442.10 for those three months. Nonetheless, claimant only seeks reimbursement at the daily rental rate of $113.16 for the 34-day period she lived in the temporary apartment.

LAW

The crux of claimant's case is that she is seeking a rent credit in the form of money damages for being forced out of her apartment after it was destroyed by water, requiring extensive renovations that took a prolonged time period. A landlord is obligated to maintain a residential premises in habitable condition, and this duty cannot be delegated or waived (see Real Property Law § 235-b; Park W. Mgt. Corp. v Mitchell, 47 NY2d 316, 327 [1979]). This warranty of habitability, implied in every lease, extends to the "acts of third parties" (47 NY2d at 327). The landlord warrants that the "premises are fit for human habitation," that "the condition of the premises is in accord with the uses reasonably intended by the parties" and that the "tenants are not subjected to any conditions endangering or detrimental to their life, health or safety" (id. at 325). "The obligation of the tenant to pay rent is dependent upon the landlord's satisfactory maintenance of the premises in habitable condition" (id.).

A "violation of a housing code or sanitary regulation is not the exclusive determinant of whether there has been a breach" of the warranty (id. at 328). Although a landlord is "not required to ensure that the premises are in perfect or even aesthetically pleasing condition" (id.), "[i]f, in the eyes of a reasonable person, defects in the dwelling deprive the tenant of those essential functions which a residence is expected to provide, a breach of the implied warrant[y] of habitability has occurred" (id.).

In order for a tenant to recover for breach of the warranty of habitability, the landlord must have actual or constructive notice of the condition in need of repair (Matter of Moskowitz v Jorden, 27 AD3d 305, 306 [1st Dept 2006], lv dismissed 7 NY3d 783 [2006]; 386 Ft. Washington Realty LLC v Brenes, 46 Misc 3d 150[A], 2015 NY Slip Op 50286[U] [Sup Ct, App [*5]Term, 1st Dept 2015]; 1050 Tenants Corp. v Lapidus, 16 Misc 3d 70 [Sup Ct, App Term, 1st Dept 2007]; Wallace 18 LLC v Tucker, 66 Misc 3d 1209[A], *7 [Civ Ct, Bronx County 2020]).

The proper measure of damages for breach of the warranty "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" (47 NY2d at 329). "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" (id.). When determining damages, the Court 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" (id. at 330). Expert testimony is not required to determine the diminished market value of the dwelling (id.).

ANALYSIS

Although it is undisputed that the water damage to claimant's apartment occurred on the night of August 22, 2019, after a heavy rainstorm, claimant is only seeking damages for the time she had to stay in the temporary apartment while repairs were being made to her home. It is undisputed that this period encompassed 34 days, from September 5, 2019 to October 9, 2019. Claimant accounted for the two rent credits previously given by the Landlord and subtracted these amounts from the damages she is seeking. Defendants did not argue that they lacked actual or constructive notice of the conditions in the apartment, and the Court finds that claimant met her burden of establishing notice. Claimant testified that she contacted defendants during the rainstorm, and numerous emails were submitted showing ongoing correspondence between claimant and the Property Manager regarding the conditions and work in the apartment. The Court finds that petitioner established that the Landlord had notice of the conditions through its Property Manager (see Windemere Chateau, Inc. v Hirsch, 22 Misc 3d 1108[A], 2008 NY Slip Op 52614 [U], *4 [Civ Ct, NY County 2008][the landlord was on notice "through its agents"]).

The Court also finds that claimant established, by a preponderance of the evidence, that the conditions that persisted after August 22, 2019 breached the warranty of habitability. In a similar case involving "cascading" water from an above apartment, the Civil Court determined that the warranty had been breached, where repairs could not be made until walls had dried, property was damaged, and goods had to be packed and stored during the painting (Sargent Realtly Corp. v Vizzini, 101 Misc 2d 763 [Civ Ct, NY County 1979]). Although the Civil Court issued only a 50% abatement in that case, there was no indication that the tenant had relocated to another apartment. In a more recent case, the Civil Court granted a full rent abatement for the three months the tenant had granted the landlord access for repairs from water leaks and before the apartment was rendered habitable; it is not clear from that decision whether the tenant was living in the apartment during that time period (de Socio v 136 E. 56th St. Owners, Inc., 61 Misc 3d 1220[A], 2018 NY Slip Op 51623[U] [Civ Ct, NY County 2018]).

Here, claimant was displaced from her apartment while the repairs were being made, and the Court finds that the displacement was necessary given the small size of the apartment, the nature of the construction work that had to be performed, and the extensive time period the apartment was under construction. Given the necessary relocation, Mr. Washington's testimony that the defendants would have paid for a hotel for that time period, that the repairs took longer than anticipated due to no fault of claimant, that there are ongoing issues with water damage, and [*6]that claimant does not seek damages for the time she was living in the apartment after the storm (from August 22 to August 27), the Court finds that claimant is entitled to damages in the amount of $3,150.01 for the 34 days she had to stay in the temporary apartment.

The Court does not find any basis to hold the Property Manager liable. The renewal lease is between claimant and the Landlord, not the Property Manager (exhibit A) (tr at 80). As discussed above, the Landlord is obligated to maintain the premises in habitable condition and that duty is nondelegable (Park, 47 NY2d at 329).

Accordingly, the Court awards claimant $3,150.01 against the Landlord, 5504-301 E. 21st St. Manhattan LLC, with statutory interest from September 5, 2019, the date of the alleged breach (see CPLR 5001, 5004). The claim against the Property Manager, Akelius, is dismissed."

DEALING WITH RENT IMPAIRING VIOLATIONS UNDER THE MULTIPLE DWELLING LAW

FOOD FIRST HDFC INC. v. Turner, 2020 NY Slip Op 51155 - NY: City Court, Civil Court October 5, 2020:

"......If HPD's official records show that an owner of a multiple dwelling does not remove a rent-impairing violation within six months after the notice of the violation, and if a tenant of "any premises in such multiple dwelling" pleads such a defense in a nonpayment proceeding and deposits with the clerk of the Court the amount of rent the owner demands in its petition, then the owner may not recover any rent after the expiration of the six months so long as the violation remains uncorrected. MDL §§302-a(3)(a), 302-a(3)(c). As Respondent has fulfilled every condition to the letter of the statute, Respondent proves, as a prima facie matter, that Petitioner may not collect rent from her from six months after the notice of the first violation until Petitioner corrects the Violations. 50 Manhattan Ave. LLC v. Powell, 2018 N.Y.L.J. LEXIS 777, *5-6 (Civ. Ct. NY Co.), Worley v. 151 W. Realty Co., 1995 N.Y.L.J. LEXIS 9783, *4 (Civ. Ct. NY Co.).

.....

Accordingly, Respondent is entitled to summary judgment on her defense pursuant to MDL §302-a. According to the facts Respondent has demonstrated by this motion, the statute precludes Petitioner from recovery of rent "for the period that such violation remains uncorrected after the expiration of said six months." MDL §302-a(3)(a). Words mean the same thing even when used in different statutes if the statutes concern the same subject matter. Benesowitz v. Metro. Life Ins. Co., 8 NY3d 661, 668 (2007). The statutory use of the word "period" in relation to landlord/tenant relationships speaks of the relevant time interval for payment of rent in terms of months. RPL §232-c ("if the landlord shall accept rent for any period subsequent to the expiration of such term the tenancy created shall be a tenancy from month to month commencing on the first day after the expiration of such term")(emphasis added). If a landlord does not correct a rent-impairing violation within six months of its issuance, then, the "period after the expiration of said six months" referred to in MDL §302-a(3)(a) means the month following the expiration of the six-month period. Similarly, if the "period" that a rent-impairing violation "remains uncorrected" ends in the middle of a month, the "period" in which a landlord may not recover rent includes the entirety of that month.

Six months after the issuance of the Violations in this matter fell in December of 2019. Petitioner therefore may not recover rent starting in January of 2020. The Violations remained uncorrected until July of 2020, so the first month that Petitioner may therefore receive rent is August of 2020. Respondent's rent for January of 2020 was $1,048.29 and from February through July of 2020 was $1,074.46. Respondent's aggregate rent liability from January through July of 2020 was $7,495.05. Respondent is entitled to a credit of this amount which, when set off against the amount demanded in the petition of $4,193.16, leaves a credit of $3,301.89. As the credit is greater than the judgment amount demanded in the petition, the Court dismisses the petition.

After dismissal of the petition, what remains of the proceeding is Respondent's counterclaims. At oral argument of this motion, Respondent indicated that it made sense to revisit the question of the course of this proceeding in the event the Court dismissed the petition. The Court therefore holds in abeyance the balance of Respondent's motion pending a conference of this matter which the Court will calendar virtually with the parties.

The Court further directs the clerk of the Court to release to Respondent the $4,193.16 that Respondent had deposited with the Court on December 19, 2019, which was memorialized as transaction No. 3490."

LANDLORD/TENANT - RENT ABATEMENTS

What is the decrease in value of an apartment infested with mice, cockroaches and badly in need of repairs?

Sheridan 1511 LLC v. Fofana, NYLJ October 02, 2019, ate filed: 2019-09-11, Court: Civil Court,  Judge: Judge Diane Lutwak, Case Number: 32176/2018:

"Accordingly, for the 19-month period from February 2018 through August 2019 Respondent is entitled to a 25 percent  abatement of the rent due to the unresolved infestation of mice. For the 13-month period from February 2018 through February 2019 Respondent is entitled to an additional 5 percent  abatement due to the cockroach infestation which Respondent testified he had resolved as of March 1, 2019.

Further, the court finds that other conditions existed at least as of the August 17, 2018 stipulation and continued through some point in January or February 2019 which warrant an additional 10 percent  abatement, see, e.g., Tower West Associates v. Derevnuk (114 Misc2d 158, 450 NYS2d 947 [Civ Ct NY Co 1982]), for this approximately 5-month period: defective flooring in the hallway, kitchen and bathroom; peeling paint throughout the apartment; defective light fixtures throughout the apartment. Petitioner offered no evidence or testimony about any attempts to make repairs during this time period; rather, it was Respondent who testified that Petitioner had substantially corrected these conditions by March 2019, with only the defective bedroom light fixtures remaining unresolved.
Respondent’s testimony was not clear and the record otherwise is insufficient to show dates after January 23, 2018 when the conditions existed involving the bathroom flushometer, kitchen cabinets, elevator, building entrance door, water leaks into the public lobby and public stairway; accordingly, the Court declines to award a further abatement for these items. See, e.g., Mantica R Corp NV v. Malone (106 Misc2d 953, 436 NYS2d 797 [Civ Ct NY Co 1981]). Although HPD wrote up violations of some of these items on April 27, 2018 and sent notice to the landlord on May 3, 2018, HPD’s records show that by June 8, 2018 it had received the landlord’s certification that the violations had been corrected."

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.

A CAVEAT TO SOME BASIC RULES ON BREACH OF WARRANTY OF HABITABILITY

de Socio v. 136 E. 56th St. Owners Inc, TS-300481-09, 2018-10-05 , Court: Civil Court, New York County, Judge Dakota Ramseur - NYLJ 11/26/18:

"The warranty of habitability applies only to areas that are “within the landlord’s control” (12-14 E. 64th Owners Corp. v. Hixon, 130 AD3d 425, 426 [1st Dept 2015], citing Park W. Mgt. Corp., 47 NY2d 316, 327 [1979] [affirming appellate term's denial of rent abatement for period where, after a flood, cooperative unit owner advised the cooperative that she intended to make leak repairs herself and where "[t]he cooperative credibly submit[ted] that, absent respondent’s delays and misconduct, it would have restored [the unit owner's] apartment to a habitable condition]).

Consequently, a tenant cannot recover under the warranty of habitability, or any abatement will be reduced, when access to the landlord to inspect or remedy the alleged defective condition is refused or thwarted (N.Y. Real Prop. Law §235-b; Finkelstein & Ferrara, Landlord and Tenant Practice in New York §9:79; Scherer/Fisher, Residential Landlord Tenant L. in N.Y. §12:115 [collecting cases]; Brookwood Mgt. Co. v. Melius, 14 Misc 3d 137(A) [App Term 9th & 10th Jud Dists 2007] [tenant not entitled to an abatement because he denied access to landlord's agents to remedy the condition and, once access was granted, the agents corrected the condition]; W. 122nd St. Assoc., L.P. v. Gibson, 5 Misc 3d 137(A) [App Term 1st Dept 2004] [affirming trial court's determination in favor of landlord based on finding that tenant impeded landlord's ability to complete the stipulated painting work]; 930 Fifth Corp. v. Shearman, 23 Misc 3d 133(A) [App Term 1st Dept 2009] [affirming trial court's judgment in favor of landlord where "any roach or mice infestation in tenant's apartment resulted largely from her failure to grant reasonable access to landlord"]; Ansonia Assoc. v. Moan, NYLJ 7/13/95, p 25, col 2 (App Term 1st Dept] [tenants refused access to landlord for asbestos abatement work]; see also N.Y.C. Administrative Code §27-2008)."

SOME BASIC RULES ON BREACH OF WARRANTY OF HABITABILITY

de Socio v. 136 E. 56th St. Owners Inc, TS-300481-09, 2018-10-05 , Court: Civil Court, New York County, Judge Dakota Ramseur - NYLJ 11/26/18:

"As an initial matter, the Court notes that Plaintiff may not recover damages for loss or diminution in value of personal property, personal injury, or pain and suffering on a claim for breach of the implied warranty of habitability (Elkman v. Southgate Owners Corp., 233 AD2d 104, 105 [1st Dept 1996] ["Loss or diminution in value of personal property as well as personal injuries and pain and suffering are not recoverable under Real Property Law [RPL] §235-b.”]). Accordingly, any claim to that effect must be denied.

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 (id.).

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).

Given the fact-specific nature of each inquiry, courts have awarded a broad spectrum of abatements, up to and including a full abatement, for water leaks, nonfunctioning appliances, and mold conditions (Solow Management Corp. v. Reinicke, NYLJ, 1/29/01, p 26, col 1 [App Term 1st Dept] [15 percent rent abatement for "sporadic leaks from a living room skylight and ceiling" and a loss of air conditioning]; Collins Estate Corp. v. Beader, NYLJ, 4/9/87, p 14, col 1 [App Term 1st Dept] [abatement reduced to 25 percent when tenant's unit was "impaired primarily as a result of a leak originating above tenant's bedroom ceiling from an upstairs apartment"]; W.S.L.S.J. & I Weinrib, A & M Reiss v. Fuchs, NYLJ, 3/5/99, p 26, col 2 [App Term 1st Dept] [court affirmed 25 percent abatement covering 18-month period]; Koch v. McQueen, NYLJ, 3/4/96, p 31, col 1 [App Term, 9th and 10th Jud Dists] [50 percent abatement for a two-month period upheld for defective repair of a deteriorated bathtub, dislocation of tiles caused by leakage in bathroom ceiling and water infiltration of common hallway ceiling]; Pamela Equities v. McSween, NYLJ, 8/18/95, p 24, col 4 [App Term, 1st Dept] [tenant awarded 25 percent abatement for 20-month period of "recurring water leaks"]; Gottesman v. Graham Apartments, Inc., 47 Misc 3d 1213(A), 2015 WL 1839746 [Civ Ct Kings County] [100 percent abatement awarded when landlord was found liable for a flood that resulted in water damage to tenant's apartment]; 157 East 57th Street LLC v. Birrenbach, NYLJ, 5/15/03, p 22, col 6, [Civ Ct NY County] [full abatement warranted where mold's size and spread necessitated abandonment of the apartment for remediation], aff’d, 8 Misc 3d 127(A) [App Term 1st Dept 2005]; Pallotta v. Perry, 2002 NY Slip Op 40328(U) [App Term 9th & 10th Jud Dists] [25 percent abatement warranted by roof leak resulting in mold and mildew, a defective freezer door gasket, and oven problems]).

The credible evidence at trial demonstrates profound damage to the Apartment rendering it materially uninhabitable from the time that the leaks began in 2005 to April 2016, when the Corporation completed the necessary repairs. The evidence shows, during that time period, numerous leaks, damage to walls, fixtures, the terrace, and personal items, and the accompanying complaints. The evidence shows the existence of mold which, while remediated, nevertheless required a significant overhaul of the Apartment. Accordingly, Plaintiff is entitled to a full abatement."