DECISION After considering the testimony and the other evidence at the trial of this nonpayment proceeding the court makes the following finds of fact, reaches the following conclusions of law, and grants petitioner a judgment for $6,050.72 as all rent due through October 31, 2017. A warrant may issue forthwith but execution shall be stayed through June 29, 2018 for the judgment to be satisfied and, if the warrant has issued, respondent’s tenancy reinstated. On papers setting forth the particulars thereof respondent, as the prevailing party, may move for an award of attorney’s fees. The court finds that petitioner is the landlord of the premises, that respondent is the tenant thereof, that the premises is a two-bedroom rent-stabilized apartment the rent for which is registered with the State of New York’s Division of Housing and Community Renewal, that the premises is located in a multiple dwelling registered as such with the City of New York’s Department of Housing Preservation and Development (“HPD”), that a predicate rent demand, notice of petition, and petition were duly served, and that petitioner otherwise proved a prima facie case.In particular, the court finds that the period of time at issue herein is January 1, 2016 through October 31, 2017, that the monthly rent due from respondent during that period was $756.34, that the rent that accrued during that period totals $16,639.48, and that after respondent’s payments during this period, including a payment without prejudice of $2,269.02, a balance of $14,370.46 remains.Respondent defended principally on the ground that petitioner had breached the warranty of habitability1. To establish the same respondent had to make four showings: (1) that there were conditions at the premises that rendered it less than habitable, (2) that petitioner knew of the conditions, either by notice from respondent or otherwise, (3) that respondent had provided petitioner with a reasonable opportunity to cure the conditions but that petitioner had not done so, and (4) that the conditions had had a detrimental impact on respondent’s use of the premises. See, Anoula Realty Corp. v. Weiss, 16 Misc 3d 133(A) (App Term, 2nd & 11th Jud Dists, 2007) and the cases cited therein.Here it is incontestable both that there were such conditions at the premises and that petitioner knew of them. In February, 2016 respondent, acting pro se, began an HP proceeding against petitioner in this court under index number 25/16. HPD’s report of its inspection of the premises on February 16, 2016 showed 7 “B” violations. Later, in December, 2016, with the assistance of counsel, respondent and several other tenants in other apartments in the building began an HP proceeding against petitioner in this court under index number 3228/16. HPD’s report of its inspection of respondent’s apartment on December 16, 2016 showed 2″A” violations, 8 “B” violations, and 1 “C” violation. Several of these — for vermin, mold, the toilet, and the kitchen sink — were substantially the same as the ones found by HPD on February 16, 2016.Respondent testified that the floors at the premises were rotted, that the stove and the refrigerator were broken, that there were numerous leaks and floods, that the toilet often did not function properly, that there was mold and mildew, and that there were frequent infestations of mice and roaches. Respondent also offered videos and ten photographs probative of the deplorable conditions at the premises, which conditions respondent testified persisted even through the duration of the instant litigation. Respondent testified that he complained repeatedly in person to petitioner’s personnel about the conditions. The court finds that this testimony was credible.Petitioner countered that respondent kept the premises in such a cluttered condition that respondent had made it unreasonably difficult for petitioner to effectuate the necessary repairs. As evidence of the same petitioner offered the testimony of Zalman Lezell, one of petitioner’s building managers. This testimony, however, had little probative value because it was superficial, i.e., it lacked particulars such as the dates of his alleged visits to the premises. Moreover, petitioner did not offer the testimony of the workers who allegedly went to the premises to make repairs but were unable to.Petitioner also offered photographs that showed cluttered conditions at the premises. However, petitioner did not show a direct connection between any of the conditions shown in the photographs and any of the conditions that petitioner asserts it wanted to but was unable to cure. The court notes too that respondent testified that he kept many of his possessions in plastic garbage bags so as to protect them from recurring leaks into his apartment, and that he never refused a request to move possessions so that repairs might be made. The court finds that this testimony was credible.At times respondent was hesitant and uncertain in his testimony, and he acknowledged that petitioner replaced the refrigerator in 2017 and the stove in either 2016 or 2017. The court finds that nonetheless respondent’s testimony was by and large credible and probative of his defense. Accordingly, the court awards respondent an abatement of 50 percent of the $16,639.48 in rent that came due during this period, i.e., $8,319.74. Subtracting this sum from the $14,370.46 that remains due leaves a balance of $6,050.72. Accordingly, the court grants petitioner a judgment for this sum.The court will mail copies of this decision to the parties along with their exhibits.Dated: Brooklyn, NYJune 18, 2018
