Decision & Order After Trial The petitioner commenced this non-payment proceeding seeking rent claimed to be due since November 2017. The respondent filed a pro se answer, wherein she stated that the rent had been withheld because the petitioner has failed to make needed repairs. The respondent subsequently obtained legal representation and the matter was adjourned for trial. The respondent then moved for leave to serve an amended answer, which the petitioner opposed. That motion was denied. The matter was then transferred to the instant Part for trial.At trial, respondent waived any challenges to the petitioner’s prima facie case and did not dispute the petitioner’s claim that $7,919.94 is owed in rent through June 30, 2018. However, according to the respondent., she was entitled to an abatement because the petitioner had breached the warranty of habitability owed to her by failing to make needed repairs. The respondent stated that the petitioner had commenced a prior non-payment proceeding against her on December 2016. The court took judicial notice of the contents of the file in L & T Index No. 73052/16, a prior non-payment proceeding between the parties in this case. In that case, the respondent had alleged, inter alia, that the petitioner had failed to make needed repairs for several years. In a stipulation dated May 23, 2017, in the prior proceeding, the parties that the petitioner would inspect and repair following conditions needed repair: roach infestation; leaking radiators in the bathroom and kitchen; window replacement needed in the kitchen and bathroom; electrical outlets in the kitchen, living room and a bedroom; a hole in the hallway closer door; paint and plaster throughout the entire apartment. Access dates were arranged.In a stipulation dated July 5, 2017, additional access dates were arranged to address the conditions raised in the first stipulation. The matter was then adjourned to July 28, 2017. On July 28, 2017, the parties agreed that the respondent would get a 15 percent rent abatement, leaving a balance of $6743.91. The petitioner was awarded a final judgment for that amount; the respondent was given until September 30, 2017 to pay the judgment amount, plus August and September rent. In addition, the petitioner once again agreed to make repairs.This proceeding was discontinued, and the judgment and warrant vacated by stipulation dated October 20, 2017. This stipulation further provided that the petitioner would make the agreed upon repairs, although in said stipulation the petitioner alleged that it thought the windows were working properly.According to the respondent, when the petitioner failed to address the conditions listed in the stipulations in the prior proceeding, she once again began to withhold rent. She also testified that she commenced an H/P proceeding on December 15, 2017, the day she filed her answer to the instant proceeding. There was an inspection on December 28, 2017. The inspector placed 10 violations on the subject apartment: paint needed in the second bedroom; abate the water leak paint at the ceiling of the interior hallway; paint the ceiling walls of interior hallway; abate the water leak at the ceiling of the second bedroom; repair apartment door entrance; repair and/or replace the smoke and CO2 detectors; and, repair broken and defective window panes. The apartment was inspected once again on March 10, 2018. At that time, the inspector found that 4 of the conditions remained outstanding, including the defective entrance door. The H/P proceeding was settled on March 14, 2018.The respondent6 does not recall whether anyone came to the apartment between the July 17, 2017 and October 20, 2017 to make the repairs because at that time she was more focused on obtaining a “one-shot” deal to pay the arrears. However, once that case ended in October 2017, and the petitioner continued to fail to make the promised repairs, she began to withhold the rent once again.She has acknowledged that most of the repairs have been completed, including the repair to the front door. According to the respondent, the door was finally repaired in May 2018, after the NYC Fire Department came to apartment in response to an emergency call to HPD.A paralegal working for the respondent’s counsel testified as well with respect to the conditions in the subject apartment. He stated that he inspected the apartment and took photographs documenting the conditions in the apartment as of May 4, 2018. These photographs were admitted into evidence.The owner and building manager testified in opposition to the respondent’s abatement claim. He acknowledged that he was aware of the terms set forth in the July 2017 stipulation and that the respondent had given a rent abatement at that time. He claimed that he had received no further complaints about the needed repairs until the October 2017 court date. After that date, he was not aware that any items remained in need of repair until he received notification of the H/P proceeding commenced by the respondent in December 2017. He did contend, however, that gaining access.It is axiomatic that in every lease for residential property there is a warranty of habitability that implies a covenant that the rental premises and all common areas are fit for human habitation and for the uses reasonably intended by the parties, and free from conditions that are dangerous to life, health or safety. The warranty’s protections apply to both latent and patent defects. It places an unqualified obligation on the landlord to keep the premises habitable. Park West Management Corp. v. Mitchell, 47 N.Y.2d 316, 418 N.Y.S. 2d 310, 391 N.E.2d 1288 (1970); N.Y. Real Prop. Law §235-b.Moreover, the standard for breach of the implied warranty of habitability is measured in the eyes of a reasonable person, not in a vacuum which ignores the essence of the modern dwelling unit. It covers the level of service and amenities to be provided under the lease. Solow v. Weliner, 86 N.Y. 2d 132, 635 N.Y.S. 2d 132, 658 N.E. 2d 1005 (1995).In those instances where the warranty of habitability has been breached, the tenant is entitled to damages, generally calculated in the terms of a rent abatement and injunctive relief ordering the breach to be remedied. Bartley v. Walentas, 78 A.D. 2d 810, 434 N.Y.S. 2d 379 (1st Dep’t 1980). The amount of any abatement will depend upon the diminution of the value of the apartment during the time repairs had not been made or the services not provided. Park West Management Corp. v. Mitchell, supra. Moreover, an abatement can be given to the tenant if the landlord had actual or constructive knowledge of the existence of the conditions in need of repair, provided the tenant gives access. See, e.g., New Franconia Associates v. Papper, 2003 WL, 21700178 (N.Y. App. Term 2008).In the instant proceeding, there can be no dispute that the petitioner has been well aware of the conditions needing repair in the respondent’s apartment for several months, as these conditions were listed in a stipulation in the prior non-payment proceeding. These items had not been corrected as of October 20, 2017, the date the first non-payment proceeding was discontinued, and additional items were added on that date. It is also clear that most of the items had not been addressed by the time the respondent commenced the H/P proceeding in December 2017, as evidenced by the HPD inspection report. The court further notes that additional violations were noted by the inspector on the December 2017 inspection report. In the March 10, 2018 inspection report, three conditions, including the defective front door, remained uncorrected, Moreover, several of the items, including the front entrance door, were not addressed until mid-May 2018.The petitioner presented no evidence indicating any attempt to make repairs until violations were issued by HPD. And, there was no evidence presented to corroborate the vague contention that the respondent did not provide access.In light of these circumstances, the court finds that the respondent is entitled to further abatement of 15 percent , or $1,187.99, leaving a balance of rent due through June 30, 2018 of $6,731.95. The petitioner is, therefore, awarded a final judgment of possession and a possessory money judgment in the amount of $6,731.95. Issuance of the warrant is stayed 5 days from the date hereof.This constitutes the decision and order of this court.Dated: Bronx, New YorkSeptember 27, 2018
