Scott E. Mollen

Landlord-Tenant—Class Action Against Owners of Building Flooded by Superstorm Sandy Dismissed

This decision involved property damage claims by commercial tenants against a building owner/(owner). The damage arose from Superstorm Sandy. A trial court had granted the owner summary judgment dismissing the complaint. The Appellate Division, First Department (court) affirmed.

The court explained that the owner “established entitlement to judgment as a matter of law.” The owner's evidence showed that the tenant's damages, if any, were caused by an “Act of God.” It further stated, “that a storm of the magnitude of Superstorm Sandy would strike lower Manhattan, and that compliance with the Department of Building's mandated provisions for flood protection would be inadequate, were not foreseeable.”

The court opined that the tenants had failed to raise a triable issue of fact. They claimed that they had presented “sufficient evidence to raise triable issues including whether the buildings were adequately flood proofed and prepared for the storm; whether there was a deviation from the design drawings during construction that caused water to accumulate against the floodgate; whether it was unreasonable for defendants not to have an emergency plan; whether defendants should have trained their superintendent in flood preparation and not have permitted him to leave the buildings the weekend before the storm; and whether is was unreasonable for defendants not to call the emergency services offered by their insurer.”

The court found that the plaintiffs had “failed to provide evidence sufficient to support these theories since their experts' opinions were conclusory and unsupported by objective data or citations to the Building Code or industry standards….” Furthermore, one of the plaintiffs' expert's opinion was “based on observations long after the storm and subsequent to the installation of new floodgates.”

Finally, the court held that the trial court “did not improperly determine the credibility of the parties' experts and rely too heavily on defendants' expert.” It opined that the trial court had “evaluated whether the plaintiffs' experts' affidavits were sufficient to raise a triable issue of fact, and found them wanting.” Accordingly, it affirmed the trial court decision which dismissed the case.

Comment: The complaint alleged that the tenants lost personal property, their property had diminished in value, and they had been exposed to safety and health dangers from toxic fumes from a gasoline spill.

The trial court had noted that Superstorm Sandy had caused waters to penetrate the “building's flood protections…depositing hundreds of thousands of gallons of water” into a basement. The building's oil tank detached from the floor and released fuel oil into the waters.

Hernandez-Ortiz v. 2 Gold, LLC, Appellate Division, 1st Dept., Case. No. 158155/12, decided March 7, 2019, Friedman, J.P., Sweeny, Richter, Oing, Moulton, JJ.

Landlord-Tenant—Disabled Tenant Permitted To Make Repairs and Deduct Costs From Rent — Case Law Defining Tenant Misconduct In Warranty of Habitability Context is Sparse—Misconduct Usually Involves “Instances Where A Tenant Denies Access for Repairs” or Caused Damage—Landlord Obligated To Repair Damage Caused by Tenant's Medical Condition

A landlord commenced a nonpayment proceeding. The tenant answered, alleging inter alia, that the landlord had failed to repair the tenant's front door lock. The tenant had moved for summary judgment on the grounds inter alia, that he had made “needed repairs and deducted the reasonable cost from the rent demanded….”

The tenant is a Type 1 diabetic. He had suffered “a low sugar attack and lost consciousness.” The police “broke his front door locks and door frame to gain entry into the apartment so that emergency workers could revive him.” The tenant thereafter asked the landlord on three occasions to repair the locks and frame. The landlord refused, claiming that it was not obligated to make such repairs. The tenant paid a locksmith to make the repairs and then deducted the cost of the repairs from his rent bill and mailed the difference to the landlord. The landlord returned the payment, stating that it would not accept the reduced amount based on deductions that had not been approved in advance.

Approximately two weeks later, the tenant suffered another attack and “emergency workers again broke the door to gain entry into the apartment.” The tenant again asked the landlord to repair the locks and again the landlord refused. The tenant paid the locksmith to do the repair work.

The tenant also alleged that he advised landlord that a toilet was “clogged.” The landlord refused to make the repair. The tenant paid a plumber to fix the problem and thereafter deducted the repair costs for the locks, door and toilet and sent the balance as rent. The landlord accepted the payment.

The landlord argued that it was not required to repair the locks and door frame because the tenant had caused the damage. The landlord noted that the tenant had “several attacks over the last year which have caused emergency workers to break down the door” and the tenant had “failed to take proper measures to ensure that the incidents and ensuing damage did not reoccur.” The landlord had replaced the tenant's old toilet with a new one and the landlord's plumber had instructed the tenant how to operate the new toilet, which used less water than the old one. The landlord had refused to repair the new toilet on the grounds that the tenant had failed to follow the plumber's instructions.

The court found that issues relating to service of the predicate notice involved questions of fact which precluded summary judgment.

The court then explained that landlords have a “[s]tatutory duty to maintain a dwelling in good repair free from conditions that are dangerous or detrimental to a tenant's life, health or safety. RPL §§235-b(1)….Under certain circumstances a tenant may repair the condition and deduct its reasonable cost from the rent.” Such set offs are “generally permitted where: (1) the condition in question creates an emergency seriously affecting the habitability of the home, (2) the landlord has refused to make the repairs, and (3) the condition cannot reasonably be permitted to continue until code enforcement proceedings have run their course.” The court opined that foregoing conditions had been met.

The landlord asserted that RPL §235-b “[p]rovides that a landlord will not be deemed to have breached the warranty of habitability when the complained of condition is caused by the misconduct of the tenant or person under the tenant's direction and control.”

The court explained that the word “misconduct” in the statute must be “interpreted by the courts.” However, the court noted that decisional precedent defining “misconduct,” in the warranty of habitability context, is “sparse and generally involves instances where a tenant denies access for repairs…otherwise impedes the landlord's ability to make repairs…or actually damages the premises.”

The court found that this case did not involve any such conduct and it was “unaware of any instance where the tenant's alleged failure to account for a medical condition has been deemed misconduct which vitiates the warranty of habitability.” It further observed that Type 1 diabetes has been deemed to be a “disability under both the American's with Disabilities Act…and the New York Human Rights Law.” It stated that the New York Human Rights Law “makes it the responsibility of the owner of a housing accommodation to provide reasonable accommodations for a person with a disability when such accommodation is necessary for him or her to use and enjoy the dwelling.”

It held that the tenants “inaction” did not constitute “misconduct which relieves the (landlord) of its obligation to maintain the apartment in a habitable condition” and the landlord had failed to provide proof that the tenant's “conduct caused the toilet to malfunction.” Accordingly, the court held that the tenant “properly exercised his right to make the repairs and deduct the cost from the rent” and granted the tenant's motion to summary judgment and dismissed the case.

Comment: Does the “reasonable accommodation” requirement mandate that a landlord keep replacing doors that are damaged multiple times because of the tenant's medical condition? The landlord asserted that the damage was caused by the tenant. Must the causation be intentional for the warranty of habitability to be vitiated?

Westside Partners v. Ross, Civil Court, New York Co., Case No. 62613/18, decided March 12, 2019, Nembhard, J.

Landlord-Tenant—Holdover Proceeding Dismissed — “Golub Notice” Not Served Within Requisite Time Period—If Lease Expired, Too Late To Send “Golub Notice”—Court Puzzled by DHCR Determination

This decision involved a tenant's motion to dismiss, in a holdover proceeding. The key issue was whether a Notice of Intent Not to Renew the Lease (“Golub notice”) was served within the requisite “window period.” The “window period” is between 90-150 days prior to the expiration date of the then existing lease. A landlord “would, were it not for the Golub notice, be required to offer (tenants) a renewal lease pursuant to Rent Stabilization Code (RSC 2524.2[c]).”

A respondent had signed a rent-stabilized lease on April 11, 1992 which was to expire on April 30, 1994. The landlord alleged that it had offered a renewal lease to the tenants, but such lease had been rejected. The landlord stated that he had stopped offering renewal leases after the tenants had rejected a second renewal lease which had been offered in 1997. The only executed lease was the original, which expired April 30, 1994.

The landlord opposed the motion to dismiss, citing a decision by the NYS Div. of Housing and Community Renewal (DHCR), dated June 7, 2018, wherein DHCR determined that the tenant had been properly served with the Golub notice of the owner's intention not to renew the lease which was expiring on April 30, 2000.

With respect to DHCR's decision, the court stated “HUH?” The tenants argued that there was “no current signed lease, and without an unexpired lease in effect, there is no window period for the Golub notice to be served within.” The landlord asserted that by filing the complaint with DHCR, the tenants “chose their forum and cannot not relitigate the issues already decided by (DHCR).” The court was not aware of any petition for administrative review which “was filed challenging the (DHCR's) decision, nor has an Article 78 proceeding been instituted by (the tenants) challenging the DHCR's decision.”

The court explained that “[n]ormally that is the law, as this court is not an appellate court but a court of original, and limited, jurisdiction and, usually, bound by decisions of the DHCR, it being for other courts of this state, which have greater jurisdiction, to decide if the DHCR decision is sustainable.” However, the court stated that since it is bound by decisions of the Appellate Division and the Appellate Term, it would refuse to “follow or enforce the DHCR decision herein.” The court found the DHCR's decision to be “wrong on the law.”

The court was “at a loss to understand how the DHCR could determine that the Golub notice was served within the window period of a lease expiring on April 30, 2000, which lease both sides concede were never signed and thus never took effect.”

Rent stabilized tenants are ordinally entitled to lease renewals when their leases expire. However, owners may refuse to renew a lease based on certain specified grounds in the Rent Stabilization Law and the Rent Stabilization Code. Those grounds include that the apartment is needed for the owner's personal use or for use by the owner's immediate family. The New York Court of Appeals has held that if a landlord fails to serve a timely Golub notice, the tenant is entitled to a renewal lease.

The salient issue was whether a Golub notice may be sent when then there is no current lease in effect. In a prior case involving a primary residence dispute, a court held that since no rent stabilized lease was in effect, “[t]he landlord has no basis for a nonprimary residence action….” That court explained that “[t]he fact that the tenant is not using the apartment as a primary residence during the lease term does not entitle the landlord to eviction during that term, but only entitles the landlord not to renew the lease.” Timely service of a “Golub notice” is “jurisdictional prerequisite for a nonprimary residence action.”

Thus, the subject court held that if there is no existing lease, “[t]here can be no Golub notice served as there is no window period within which to serve it.” The court concluded that since DHCR's decision was in “direct contravention of the law as set forth by the Appellate Division…, the within proceeding is dismissed as petitioner failed to serve the Golub notice within the requisite window period prior to the expiration of the existing lease.” The court directed that the landlord offer the tenants a renewal lease. The court further stated that the landlord should “seek counsel's advice if,” for instance, tenants “yet again refuse to sign same.”

Bedford Oak LLC. v. Hernandez, Civil Court, Bronx Co., Case Number 034681/18, decided March 14, 2019, Weissman, J.

Scott E. Mollen is a partner at Herrick, Feinstein.