AFTER NON-JURY TRIAL Petitioner/Landlord Maxwell Development, L.P. commenced this nonpayment summary proceeding against Respondent/Tenant Carnation France, alleging Respondent’s failure to pay his share of rent for 143-49 West 140th Street, Apartment 7C, New York, New York (the “Apartment”), from November 2017 to the present, totaling $1,971.28, and requests legal fees. At trial on September 5, 2018, Lemor Realty manager Shanell Millner,1 New York City Housing Preservation and Development (HPD) court liaison Tiffany Johnson, and Petitioner’s building superintendent James Ware testified for Petitioner, and Respondent testified on his own behalf. Having had the opportunity to observe the witnesses and consider the competent evidence, and for the reasons below, the Court finds for Landlord, subject to an 11 percent abatement.PROCEDURAL HISTORYIn a previous action, LT-065915-17/NY, the parties signed a stipulation on October 10, 2017, so-ordered by the Honorable Laurie L. Lau (Tr 57, et seq.; Pet’r Exh 7, the “Stipulation”).2 The Stipulation provided, in relevant part, that Respondent owed $4,097.70 in arrears for his share of rent payments for Respondent’s habitability claims (id.).3 The Stipulation also required Petitioner to inspect the Apartment, and Respondent to provide access for insect extermination and intercom repair (id.).On December 5, 2017, Judge Lau noted that Petitioner’s motion for judgment had been withdrawn based on payment of the Stipulation’s arrears by the Department of Social Services, and discontinued the action without prejudice as to Respondent’s share of rent for November and December 2017 (Pet’r Exh 6). Accordingly, at the outset of this action, Plaintiff’s rent was current through October 2017 (Tr 25:3-6, 28:6-24, 29:11-30:12; Pet’r Exhs 6-7).FINDINGS OF FACT4Petitioner owns the subject building at 143-49 West 140th Street (the “Building”), including the Apartment (Tr 6:14-25; Pet’r Exh 1). The Building, which contains more than three dwelling units, is registered with HPD as a multiple dwelling (Tr 7:21-9:1, 19:3-20:10; Pet’r Exh 2). Respondent’s Apartment is rent stabilized, and Respondent is a Section 8 tenant paying a portion of the overall rent based on his income, which must be recertified annually (Tr 10:25-12:17, 52:1-5; Pet’r Exh 3). The parties executed a lease effective November 1, 2005 through October 31, 2007 (Tr 12:24-14:23; Pet’r Exh 4). More recently, the parties also executed a Renewal Lease effective November 1, 2017 through October 31, 2019 (Tr 16:24-17:19; Pet’r Exh 5).In November and December 2017, Respondent owed, and did not pay, $197.00 per month, totaling $394.00 (Tr 46:9-14). For January through August 2018, Respondent owed, and did not pay, $217.00 per month, totaling, together with the 2017 arrears, $2,130.00 (id.).5 For November 2017 through approximately April 2018, Respondent acknowledged that he simply “forgot” to pay his rent (Tr 86:4-5, 90:1-4). Petitioner terminated the tenancy by notice effective August 2, 2018, and commenced a holdover/nuisance proceeding, LT-69041-18/NY, which remains pending (Tr 82:4-24).Respondent asserted a defense of breach of the warranty of habitability for several conditions, including an inoperable toilet after April 2018. Prior to April 2018, Ware had responded promptly to Respondent’s complaints of an inoperable toilet (Tr 123:23-125:5). On several prior occasions, Ware had retrieved chicken bones which Respondent had attempted to flush down the toilet, necessitating at least one replacement of the toilet (id.).6Specifically, beginning in April 2018, Respondent’s toilet did not flush for over a month, resulting in the accumulation of human waste (Tr 76:21-77:4, 77:10-21, 117:11-14, 118:4-17, 122:20-23). When Ware responded to Respondent’s complaint, he could not unclog the toilet by traditional means. Instead, he had to “take the toilet completely up. Take out the feces and put it into a garbage bag. Take the whole toilet up and turn it upside down” (Tr 122:23-123-7). After 20 minutes, Ware found the cause of the clog: a ham hock bone (Tr 123:20-25, Resp Exh A). Due to his previous unpleasant experiences, Ware refused to return to the Apartment on a subsequent occasion when Respondent made another complaint (Tr 126:4-12). As a result, Respondent has had an inoperable toilet for about one month.During the subject period, Respondent also experienced issues with the intercom (Tr 97:10-18). The intercom issue was twofold: poor intercom audio and a faulty buzzer to allow entry (Tr 98:1-6). The buzzer issue was remedied, but the audio issue was not (id.).Respondent also alleged a rodent and insect infestation which continued during the subject time period (Tr 101:12-25). According to Respondent, the presence of rats inside of his walls caused his Jack Russell Terriers to chew holes in the walls (Tr 101:12-102:25, 104:14-21; Resp Exh B).7 Respondent alleged that when Petitioner plugged some of the holes, the rats “[found] new holes. They come in different ways” (Tr 101:19-25). Respondent’s allegation of an infestation is supported by both the Stipulation, which notes an insect infestation, as well as an open August 2016 HPD complaint to that effect which corroborates the continued presence of roaches (though not rats) and a defective intercom, (“Open Violations,” https://hpdonline.hpdnyc.org/HPDonline/select_application.aspx, accessed October 16, 2018):7C 7 2016/00/29 B 2016/00/31 568 11372304 5504745 Original §27-2018 admin. Code: abate the nuisance consisting of roaches in the entire apartment located at apt 7c, 7th story, 1st apartment from west at north NOT COMPLIED 2018/09/05 2016/10/19 2017/05/2047C 7 2016/00/29 B 2016/00/31 501 11372326 5504745 Original §27-2018 admin. Code properly repair the broken or defective intercom and buzzer return system at north wall in the foyer located at 7c, 7th story, 1st apartment from west at north NOT COMPLIED 2018/09/05 2016/10/19 2017/05/204To the extent that Respondent also alleged heat and window issues at trial, those complaints are uncorroborated (Tr 97:10-18, 120:20-23, 128:19-129:15).8DISCUSSIONAs an initial matter, the Court deems Tenant’s answer amended to include a defense of breach of warranty of habitability. Where no prejudice is shown, sua sponte amendment may occur “during or even after trial” to conform the pleadings to the documentary evidence and arguments (Murray v. City of New York, 43 NY2d 400, 405 [1977]; O’Neill v. New York Univ., 97 AD3d 199, 209 [1st Dept 2012]). No prejudice is evident here. First, Respondent has registered numerous complaints about the Apartment, both to HPD and in prior actions, as memorialized by the Stipulation and Judge Lau’s order. Second, Judge Katz’s June 6, 2018 pre-trial order, though unsigned, notes that “warranty of habitability” and “rent abatement” defenses would be asserted at trial. Accordingly, the Answer is deemed amended to include a defense for breach of warranty of habitability.9At trial, Respondent repeatedly argued that he had signed the Stipulation under duress. “Stipulations of settlement are favored by the courts and not lightly cast aside,” and the strict enforcement of open court stipulations serves the interests of efficient dispute resolution and management of court calendars (Hallock v. State, 64 NY2d 224, 230 [1984] [finding that attorney with apparent authority could bind a party to the terms of a stipulation, particularly where the party was involved in the settlement negotiation and dictation into the record without objection]; Joseph v. Nationwide Ins. Co., 2002 NY Slip Op 50473(U) [Civ Ct NY County], citing Tepper v. Tannenbaum, 83 AD2d 541 [1st Dept.1981] ["Stipulations that are not unreasonable, not against good morals or sound policy, have been and will be enforced, particularly those that have been 'so-ordered' by the court, thereby indicating the parties' willingness to be bound thereby."]).“Relief from stipulations is available only on the grounds sufficient to invalidate a contract, such as fraud, collusion, mistake, or accident” (Hallock, 64 NY2d at 230; cf 622 E. 169 LLC v. McClain, 59 Misc 3d 1208(A) [Civ Ct 2018] [vacating stipulation where the court, based on previous conferences with the tenant, found it believable that the tenant, a homeless mother with children, would not knowingly waive an illusory tenant defense]).While Petitioner’s attorney acknowledged drafting the Stipulation, Respondent’s contentions that he either did not understand the Stipulation or signed it under duress are undermined by the Stipulation’s memorialization of the very conditions which Respondent alleges here, together with a partial abatement for those conditions (Tr 101:2-17). Respondent’s conclusory statements of duress, made nearly one year after he signed the Stipulation after Petitioner commenced another nonpayment action, are insufficient to merit vacatur.Substantively, a petitioner in a summary non-payment proceeding must demonstrate a breach of a conventional landlord-tenant relationship; that is, rent due and unpaid (RPAPL 711[2]); Mahshie v. Dooley, 48 Misc 2d 1098, 1099 [Sup Ct Onondaga County 1965]). Petitioner established its prima facie case without Respondent’s objection (see RPAPL §741; 711[2]; Tr 23:18-23).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. Attorney’s feesThe Lease does contain a provision for legal fees, but is identified as “Owner’s Option” and is not checked (Pl Exh 419). Accordingly, fees are denied.CONCLUSION/ORDERFor the above reasons, it is herebyORDERED and ADJUDGED that the Clerk of Court shall enter judgment in favor of Petitioner in the amount of $1,895.70, and for possession of the subject premises should Respondent fail to satisfy said monetary judgment; and it is furtherORDERED that the issuance of a warrant shall be stayed for five days from service of this decision by Petitioner to permit Respondent time to satisfy said monetary judgment; and it is furtherORDERED that the Clerk of Court shall send a copy of this decision to both parties and HPD forthwith; and it is furtherORDERED that Petitioner shall, within 60 days of receipt of this Order, inspect the Apartment and correct all conditions addressed in this opinion.ORDERED that Petitioner shall serve a copy of this Order with notice of entry upon all parties within five days; and it is furtherThis constitutes the decision and order of this Court.Dated: New York, NYNovember 1, 2018
