Recitation, as required by CPLR §2219(a), of the papers considered in the review of respondent’s motion for an order dismissing the proceeding and awarding him costs and legal fees.Papers NumberedNotice of Motion and Affidavits Annexed 1Order to Show Cause and Affidavits AnnexedAnswering Affidavits 2Replying Affidavits 3ExhibitsDECISION/ORDER Upon the foregoing papers, the Decision/Order on this motion is as follows:BackgroundPetitioner commenced the instant nonpayment proceeding by notice of petition and petition, to recover rent for the month of May 2018. Prior to commencement petitioner served a three day rent demand. Respondent interposed a pro se answer alleging that petitioner refused to repair his front door lock and failed to properly serve the predicate notice. Respondent now moves for summary judgment on the grounds that he made needed repairs and deducted the reasonable costs thereof from the rent demanded and on his improper service defense.DiscussionRespondent states that he is a Type 1 diabetic. On April 18, 2018 he 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. He subsequently asked petitioner on three separate occasions to repair the locks and frame but petitioner refused telling him that it was not obligated to do so. On or around April 26, 2018 respondent paid a locksmith $713.13 to make the repairs. He then deducted the cost of the repairs from his May rent bill of $748.83 and mailed the difference of $35.70 to petitioner who returned it with a letter stating that it did not accept deducted rent payments which were not approved in advance. Respondent suffered another attack on or around May 11, 2018 and emergency workers again broke the door to gain entry into the apartment. He again asked petitioner to repair the broken locks and again petitioner refused causing him to pay the locksmith $324.44 to do so.Respondent also avers that in May 2018 he told petitioner that his toilet was clogged. Petitioner refused to make the repair therefore he paid a plumber $455.00 to fix the problem. In June 2018 he deducted $1,492.57 representing the repair costs for the locks, door and toilet and sent petitioner a check for $5.09 to pay the balance of rent through June. Petitioner accepted the payment. Respondent submits the bills for the repairs as exhibits to the motion.Respondent also alleges that he never received a copy of the predicate notice either by mail or by conspicuous service. He notes that a copy of the certified mail receipt is not attached to the affidavit of service for the notice of petition and petition.Petitioner, in opposition, argues that it is not required to repair respondent’s locks and door frame because respondent’s actions caused the damage. Petitioner states that respondent has had several attacks over the last year which have caused emergency workers to break down the door. Despite this, respondent has failed to take proper measures to ensure that the incidents and ensuing damage did not reoccur. As for the toilet, petitioner replaced respondent’s old toilet with a new one as required by the Building Code. Petitioner’s plumber instructed respondent how to operate the new toilet which uses less water than the old one. When informed that the toilet was clogged petitioner refused to repair it because it was respondent’s fault for failing to follow the plumber’s instructions.As for respondent’s challenge to service, petitioner argues that his mere denial is insufficient to warrant summary judgment. Moreover, it is not required to attach the certified mailing certificate to the affidavit of service. At the very least, these issues raise questions of fact which prohibit summary judgment.On a motion for summary judgment the movant must establish his cause of action or defense “sufficiently to warrant the court as a matter of law in directing judgment” in his favor. CPLR 3212(b). This must be done by tender of evidentiary proof in admissible form. Zuckerman v. New York, 49 NY2d 557 [Ct App 1980]. To defeat a motion for summary judgment the opposing party usually must “show facts sufficient to require a trial of any issue of fact” by producing evidentiary proof in admissible form. CPLR 3212(b). The opponent of the motion may be permitted to demonstrate acceptable excuse for his failure to meet the strict requirement of tender in admissible form. See, e.g. Phillips v. Kantor & Co., 31 NY2d 307 [Ct App 1972].A landlord has a statutory 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); Davar Holdings, Inc. v. Cohen, 255 AD 445 [1st Dept 1938]. Under certain circumstances a tenant may repair the condition and deduct its reasonable cost from the rent. Katurah Corp. v. Wells, 115 Misc2d 16 [1st Dept 1982]. 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. Jackson v. Rivera, 65 Misc2d 468 [Civ Ct NY 1971] [landlord's refusal to repair toilet gave rise to right on the part of a tenant to have the repairs made and to set off their reasonable cost against the rent claimed]. Before taking a set off the tenant must provide the landlord with reasonable notice and the landlord must wilfully refuse to make the repair. Jangla Realty Co. v. Gravagna, 112 Misc2d 642 [Civ Ct NY 1981][tenant entitled to make repairs and deduct their cost where locks damaged by burglar and landlord did not repair for 18 hours].All of these elements have been met here. First, a broken front door and malfunctioning toilet qualify as serious emergency conditions which affect the apartment’s habitability. See, Jackson v. Rivera; Jangla Realty Co. v. Gravagna, supra. Next, petitioner does not allege that it lacked notice of theses conditions but instead simply refused to repair them under the belief that it was not obligated to do so. Finally, it would be unreasonable to require respondent to continue to live in an apartment with a broken front door and non-working toilet while a tenant initiated action ran its course.Petitioner’s contention that it was not required to make the repairs is misguided. Petitioner notes that RPL §235-b provides 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. However, the word “misconduct” in the statute must be interpreted by the courts. Segal v. Justice Court Mutual Housing Cooperative, Inc., 105 Misc 2d 453, 432 N.Y.S.2d 463[Civ Ct Qns 1980]. Case law defining tenant misconduct is sparse and generally involves instances where a tenant denies access for repairs [Marz Realty v. Reichman, 2003 NY Slip Op 50700(U) [App Term 2nd Dept]; otherwise impedes the landlord’s ability to make repairs [W. 122nd St. Assoc., L.P. v. Gibson, 5 Misc. 3d 137(A) [App Term 1st Dept 2004]; or actually damages the premises. [Maxwell Dev., L.P. v. France, 2018 NY Slip Op 51661(U) [Civ Ct NY 2018]. None of these things occurred here. Moreover, the Court is unaware of any instance where a tenant’s alleged failure to account for a medical condition has been deemed misconduct which vitiates the warranty of habitability. Type 1 diabetes is considered a disability under both the American’s with Disabilities Act, 42 USC §12102(2)(A); Matter of Jacobson v. New York City Dept. of Transp., 33 Misc. 3d 1218(A) [Sup Ct 2011] and the New York Human Rights Law. Exec Law §§292 (21)(a). The latter 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. Exec Law §296.18 (2). Applying this principle to the facts here, the court does not find that respondent’s inaction constitutes misconduct which relieves petitioner of its obligation to maintain the apartment in a habitable condition.Finally, petitioner speculates but provides no proof that respondent’s conduct caused the toilet to malfunction. Accordingly, the Court finds that respondent properly exercised his right to make the repairs and deduct the cost from the rent.ConclusionBased on the foregoing the motion is granted and the case dismissed. The branch of motion seeking costs and legal fees is denied as respondent has not provided proof that he is entitled to such relief.This constitutes the decision and order of the Court.Date: March 12, 2019New York, New York
