This is a summary proceeding commenced by Petitioner/Landlord, 3 Green Street, LLC, by the filing of a petition dated January 18, 2019 for non-payment of rent (“the Petition”) against Respondent/Tenant Krystal Caceras.1 The Petition alleges Ms. Caceres (“the Respondent”) was the tenant of Apartment No. 1R at 3 Green Street, Hastings on Hudson, New York, pursuant to a rental agreement setting the rent at $1,425 per month. The Petition alleges that Respondent failed to pay the rent for the months of April, July, August, September, October, November and December 2018, and January 2019, for a total rent due of $11,400.At a February 13, 2019 conference with the Court, the parties agreed that the total unpaid rent at that date was actually $4,275. Also at that conference, Respondant requested a stay of proceedings pursuant to §755 of the Real Property Actions and Proceedings Law (“RPAPL”), asserting that the conditions in the apartment were such that she was entitled to relief under that provision. The Court adjourned the proceeding to February 27, 2019 for the purpose of conducting a hearing pursuant to §755(b) to determine whether there were such condictions that entitled Respondent to relief, and ordered the Respondent to deposit $4,275 on or before February 20, 2019, pursuant to the requirements of RPAPL §755, subdiv. 2. Respondent did not make the required payment by that date, and did not appear timely for the scheduled hearing before Justice Joseph DiSalvo of this Court on February 27, 2019, resulting in the entry of a default judgment in the amount of $5,640 and a warrant of eviction. Respondent’s lease expired on February 28, 2019. On March 8, 2019, the Appellate Term granted an order to show cause staying enforcement of the judgment and warrant of eviction.At a March 27, 2019 hearing on the order to show cause, the Court lifted the stay on execution of the warrant of eviction, but stayed execution on the money judgment until April 30, 2019, and gave Respondent until April 26, 2019 to deposit the unpaid rent and ordered that if she did so, the matter wold be restored to the Court’s calendar for a rent abatement hearing pursuant to RPAPL §755.2 On April 25, 2019, Respondent made the required deposit of $7,065. It appears Respondent vacated the apartment prior to the end of March.An evidentiary hearing on Respondent’s abatement claim was held on May 8, 2019. Respondent appeared and testified, and offered photographic and documentary evidence to support her claim that the landlord had allowed conditions to exist that entitled her to an abatement of her rent. The Petitioner appeared by counsel, but did not call any witnesses or offer any evidence, other than a second copy of a letter, already offered in evidence by Respondent, from Respondent to the landlord that contained a handwritten note from Respondent that did not appear on the copy she offered into evidence. The Court reserved decision after the hearing, and this represents the Court’s decision on the merits. For the reasons set forth in this opinion, I order that $2,137.50 of the funds deposited with the Court by Respondent be paid to Petitioner, and that the balance of the funds be returned to Respondent. The prior default money judgment is hereby vacated. Since Respondent’s lease has expired and she has vacated the apartment, the issue of the warrant of eviction is moot.The merits of this dispute are governed by Real Property Law §235-b, which provides, in relvant part, as follows:1. In every written or oral lease or rental agreement for residential premises the landlord or lessor shall be deemed to covenant and warrant that the premises so leased or rented and all areas used in connection therewith in common with other tenants or residents are fit for human habitation and for the uses reasonably intended by the parties and that the occupants of such premises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety. When any such condition has been caused by the misconduct of the tenant or lessee or persons under his direction or control, it shall not constitute a breach of such covenants and warranties.Respondent’s testimony at the hearing, which was uncontradicted, established clearly that Petitioner breached its warranty of habitibality. Respondent testified that throughout the term of her tenancy, the roof of her apartment leaked whenever there was rainy wheather. She produced photographic evidence of damage to bedding and pillows (Respndent’s Exhibits C2, C6), as well as water damage to the ceiling and wall of the apartment from the leak (Respondent’s Exhibits C3, C4, C5). She produced photographs of bowls of accumulated water that leaked from the ceiling (Respondent’s Exhibits B1, B2, C1). Respondent also produced documentary evidence that she notified the superintendent of the building, Albert Garcia, of the condition, and testified that he failed to take any action to correct the problem (Respondent’s Exhibits B1, B2, B3).3The superintendent’s written response, “O no that sucks” (Respondent’s Exhibit B1), is hardly adequate. At the hearing, Petitioner chose not to call Mr. Garcia, or any other witness, to explain what, if any, steps it took to aleviate the problem.The unrepaired leaky roof alone entitles Respondent to an abatment of the rent. Dekoven v. 780 West End Realty Co., 48 Misc 2d 951, 956-57, 266 N.Y.S.2d 463, 469-70 (N.Y.C. Civ. Ct. 1965). Furthermore, Petitioner’s suggestion, unsopported by any evidence, that the leak and water damage may have been caused by the actions of another tenant in the apartment above Respondent’s is irrelevant. In the leading case discussing the scope of the implied warranty of habitability, our Court of Appeals has explained that §235-b “places an unqualified obligation on the landlord to keep the premises habitable [and] conditions occasioned by oridinary deterioration, work stoppages by employees, acts of third parties or natural disaster are within the scope of the warranty.” Park West Management Corp. v. Mitchell, 47 NY2d 316, 329, 391 N.E.2d 1288, 1295, 418 N.Y.S. 2d 310, 317 (1979). This case is strikingly similar to Sargent Realty Corp v. Vizzini, 101 Misc 2d 763, 421 N.Y.S.2d 963 (N.Y.C. Civil Ct. 1979), where the court held that a breach of the implied warranty occurred when the landlord failed to act to prevent repeated instances of “cascading” water from the tenant’s upstairs neighbor’s apartment. Interpreting Park West Management, the court said: “The Court of Appeals has placed the responsibility for maintaining the premises in a safe habitable condition on the landlord, even where the unsafe condition may have been brought about by the acts of third parties.” 101 Misc 2d at 1295, 421 N.Y.S.2d at 964.Thus, “the landlord’s failure to take steps to eliminate the condition may constitute a breach of the warranty of habitability….” Id. (citation omitted).Respondent also testified without contradiction that she was left without heat and hot water for extended periods of time during the winter months, exposing her and her young child to conditions clearly detrimental to their health or safety. Once again, Respondent produced documentary evidence that she notified Mr. Garcia of this problem (Responedent Exhibits B3, E; Petitioner’s Exhibit 1). She testified, again without contradiction, that those conditions adversely affected her daughter’s health, and that they were forced to leave the premises and live elsewhere for a total of apporoximatley eleven days in October 2018 and February 2019. Thus, the periodic lack of heat and hot water represented an additional breach of the warranty of habitability.Having found that Petitioner breached the warranty of habitabity, the Court must now determine the appropriate relief. In Park West Management, the Court of Appeals identified the proper measure of damages as “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, 391 N.E.2d at 1295, 418 N.Y.S.2d at 317. “That the damages are not susceptible to precise determination does not insulate the landlord from liability.” Id. (citations omitted). “In ascertaining damages, the finder of fact must weigh the severity of the violation and the 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.; accord, Rose Mt. Vernon Corp. v. Jackson, 2013 NY Slip Op. 52162(U), 2013 NY Misc. LEXIS 5837, 2013 WL 6640208 (App. Term 2d Dep’t, 9th & 10th Judicial Dists. 2013). Both sides, the landlord and the tenant, are “competent to giver their opinion as to the dimunation in value occasioned by the breach [and] expert testimony is not required” Park West Management, 47 NY2d at 329, 391 N.E.2d at 1295, 418 N.Y.S.2d at 317 (citation omitted). In fact, §235-b, subd. 3(a) specifically states that the Court “need not require any expert testimony.”Here, while the severity of the violations may not have been extreme, it was not insignificant. The roof leak resulted in damage to the apartment and to Respondent’s property. The lack of heat and hot water during winter months may have contributed to the illness of Respondent’s child. It appears that the violations persisted from at least October 2018 through January 2019. The Petitioner offered no evidence of any efforts to remediate the conditions, and Respondent testified there were none. As a result, the Court deems an abatment of 50 percent of the rent for the months of November and December of 2018, and January of 2019 to be the appropriate measure of damages.As previously pointed out, see n. 2, infra, the Petition covers the rent for the months of November and December 2018 and January 2019, but it was not amended to include rent for February of 2019, the final month of the lease, or use an occupancy for March 2019. Under nearly identical circumstances in Edgemont Corp., supra, the Appellate Term for this Judicial District ruled as follows:With respect to the rent for March and April, which was on deposit with the court, it was error for the court to direct that these moneys be remitted to landlord. This rent was not sought in the petition and the petition was not amended. Under the circumstances, landlord did not establish its right to these moneys.170 Misc 2d at 1043, 656 N.Y.S.2d at 87. Thus, the Petitioner is not entitled to receive any of the deposited funds for rent or use and occupancy for February or March 2019. The amount of rent to which the 50 percent abatement will be applied is $4, 275 — the rent for November and December 2018 and January 2019. The abatement is, therefore, a total of $2,137.50, and Petitioner is entitled to an equal amount as rent for those three months.Respondent provided documentary evidence that she paid a security deposit of $2,850 at the signing of the lease in February 2018. This payment is not disputed. Petitioner argued at the hearing that Respondent is not entitled to credit in this proceeding for the amount of the security deposit, which has not been returned to her. On the one hand, RPAPL §743 states that the Respondent’s answer to the Petition “may contain any legal or equitable defense, or counterclaim.” Edgemont Corp. v. Audet, 170 Misc 2d, 1040, 1043, 656 N.Y.S.2d 85, 87 (App. Term 2d Dep’t, 9th & 10th Judicial Dists. 1996). Under General Obligation Law §7-103, subd. 1, Respondent’s security deposit remained her property, held in trust by Petitioner, and should be returned to her in the absence of proof that she caused damage to the apartment beyond that attribitable to ordinary wear and tear. Finnerty v. Freeman, 176 Misc 2d 220, 673 N.Y.S.2d 843 (App. Term. 2d Dept., 9th & 10th Judicial Dists. 1998). Petitioner has not produced any evidence that Respondent caused damage to the apartment. If that were the end of the story, Respondent would be entitled to a set-off in the amount of the security deposit.4That, however, is not the end of the story. Paragraph 25 of the Lease contains the following provision: “Tenant gives up any right to bring a counerclaim or set-off in any action or proceeding by Landlord against Tenant on any matter directly or indirectly related to this Lease or Apartment.” Respondent’s Exhibit A. While, as previously pointed out, supra n. 3, RPL §235-b subd. 2 makes this provision void with respect to a counterclaim or set-off for a breach of the implied warranty habitability, it does not appear to affect the enforceability of 25′s waiver of the right to bring a counterclaim or set-off based on Respondent’s claim for return of the security deposit. Respondent is, therefore, not entitled to a set-off in this proceeding for the security deposit, whatever her rights might be in a separate proceeding.Thus, for different reasons, both parties are unable to recover in this proceeding amounts that might be due them, and might be subject to recovery in separate proceedings. Ironically, this outcome actually achieves a measure of equity. Because it did not amend the Petition, Petitioner was unable to recover in this proceeding rent for the month of February 2019, or use and occupancy for the month of March. Respondent, however, continued to occupy the apartment for those months. “Having received the benefit of shelter, [Respondent] [was] not entitled” to a rent free apartment. Mateo v. Anokwuru, 57 Misc 3d 61, 62, 64 N.Y.S.3d 453 (App. Term 1st Dep’t 2017). The security deposit, which Petioner has retained without proving it is entitled to do so, represents two months rent under the lease, which is what the Petitioner would likely be entitled to recover in a separate action against Respondent for the months of February and March 2019 (leaving aside, of course, the question of whether the conditions giving rise to the rent abatement continued into February and March). Thus, it appears that if Petitioner brought a proceeding to recover for February and March of 2019, and Respondent brought a proceeding to recover her security deposit, they would, in essence, cancel each other out. Fortuitously, then, the result in this proceeding achieves a balance of equity.It is therefore the order of this Court that the clerk of the court pay to Petitioner, from the $7,065 deposited by Respondent, the amount of $2,137.50 and return the balance to Respondent. Legal fees are denied.Dated: May 24, 2019Hastings on the Hudson, New York
