BACKGROUND This summary nonpayment proceeding was commenced by Petitioner against Respondent, the tenant of record of 5025 Broadway — Apt. 1K, New York, New York 10034 (Subject Premises) based on the allegation that Respondent failed to pay rent due. The primary issue at trial was Respondents’ claim for a rent abatement based on a lack of gas in the Subject Premises.PROCEDURAL HISTORYPetitioner issued a rent demand, dated August 13, 2018, seeking $5899.25 in arrears for a period from June 2018 to August 2018. The petition was filed on August 29, 2018, and the notice of petition along with proof of service were filed on September 13, 2018.Respondent appeared pro se on September 12, 2018 and filed a written answer asserting breach of warranty of habitability, a general denial and that Petitioner owes Respondent money because Respondent paid for repairs or services.The proceeding was initially returnable on September 19, 2018. Respondent made an application to obtain counsel and the proceeding was adjourned to November 13, 2018.On November 13, 2018, Respondent made a second application for an adjournment, which was granted pursuant to a written order directing Respondent to pay two months “use and occupancy” at the rate of $1,597.50 by November 20, 2018. The proceeding was adjourned to December 6, 2018.On December 6, 2018, Respondent failed to appear. The court (Nembhard, J) issued a written order which struck Respondent’s answer based on Petitioner’s allegation that Respondent had failed to make payments as previously directed by the court. The order further granted Petitioner a judgment on default for $11,182.50, the amount alleged due through December 2018.Later that day, Respondent moved to vacate his default by order to show cause. Respondent stated he had gotten to court late, because he had been stuck in traffic, that he had two months rent to pay and was seeking a one shot deal for the balance. The court declined to sign the order to show cause, without prejudice to renewal upon proof of ability to pay the arrears.Respondent again moved to vacate his default on December 20, 2018, and the court granted the motion to the extent of vacating the judgment and setting January 14, 2019 as a trial date. The order further directed “Respondent to tender $3100 to Petitioner by December 26, 2018,…or his answer will be stricken.”1On January 14, 2019, Respondent failed to appear and again the court entered a judgment against him in the amount of $11,182.50 on default. Later the same day, Respondent again moved to vacate his default, stating he had believed he was to appear in the afternoon and further stating he had no gas in the Subject Premises since November 2017. The order to show cause was granted on January 24, 2019, and the court set February 7, 2019 as a trial date.On February 7, 2019, the proceeding was transferred to Part R and a trial date was set for May 2, 2019.On May 2, 2019, the proceeding was assigned to Part 118 for trial. The trial commenced and concluded on that date and the court reserved decision.FINDINGS OF FACTPetitioner presented one witness at trial, Mr. Lousi Nunez. Mr. Nunez is the building manager. Respondent testified on his own behalf at trial. The court found Respondent to be a credible witness. Respondent also presented the testimony of Kevin Jackson at trial. Mr. Jackson is Respondent’s father and a guarantor on the lease.Petitioner is the owner of the subject building pursuant to a deed dated December 18, 2004 (Ex 1). Respondent is the tenant of record of the Subject Premises, pursuant to a written lease dated September 1, 2016 (Ex 4). The lease was for a two year term, through August 2018, at a rent of $1775.00 per month.There is a valid multiple dwelling registration on file with DHPD (Ex 2).The Subject Premises are governed by rent stabilization. The rent sued for is registered with DHCR (Ex 3).On or about December 2017, Con Edison shut off gas for the entire building. Gas was restored to all of the units in the Subject Building, except for the Subject Premises, on January 14, 2019.Petitioner made reasonable attempts to advise all tenants that access would be required on January 14, 2019 to have the gas restored. This included posting a notice in common areas of the building (Ex 6). There are 66 tenants in the subject building.On that date, Petitioner attempted to gain access to the Subject Premises for the purpose of restoring the gas, but Respondent, who was expected in court that morning for this proceeding was not at home. Respondent’s brother was at the Subject Premises, but did not allow Petitioner’s agents access or open the door. Respondent’s brother was visiting and was not familiar with Petitioner’s agents.After that date, Petitioner improperly put the onus on Respondent to get Con Edison back to the Subject Premises to restore gas. Petitioner repeatedly sent Respondent letters stating it was up to Respondent to arrange for Con Edison to return to the Subject Premises and turn on the gas (Exs 10A, 10C & 10D). Respondent was unable to do so and was advised by Con Edison that access had to be requested by Petitioner.Eventually, Petitioner did arrange for Con Edison to return to the Subject Premises, and an appointment was set for May 3, 2019, the day after the trial in this proceeding.Petitioner abated all rent for tenants in the Subject Building by 10 percent for the period between December 2017 and January 2019.Petitioner seeks $16,874.62 in rent arrears through May 2019.Respondent stopped paying rent in June 2018, and, other than a payment of $3100.00 in use and occupancy which was directed by the court during this proceeding, has not paid rent since.Petitioner offered a lease renewal to Respondent but Respondent to date has not executed the renewal or returned it to Petitioner. There is no written or oral agreement to pay rent between the parties for any period after August 2018.Petitioner sued for $4792.50 for rent for June through August which already afforded Respondent a 10 percent abatement for lack of gas. Of the amount sued for $1692.50 remains due, after crediting Respondent for the payment of $3100.00 made in December 2018 (Ex 5).In addition to offering the tenant’s a 10 percent abatement, Petitioner made hot plates available to tenants on request (Exs 8 & 9).The court takes judicial notice that the HPD website lists an open C violation for lack of gas at the Subject Premises as of February 3, 2019.DISCUSSIONA residential lease is deemed a sale of shelter and services by the landlord, who impliedly warrants that the premises are fit for human habitation, that the condition of the premises is in accord with the uses reasonably intended by the parties, and that the tenants are not subjected to any conditions endangering or detrimental to their life, health or safety ( Park W. Mgmt. Corp. v. Mitchell, 47 NY2d 316, 325(1979).In determining damages, the court must measure “the difference between the fair market value of the premises if they had been as warranted, as measured by the rent reserved under the lease, and the value of the premises during the period of the breach (Park West Management Corp., 47 NY2d 316 at 329).” Courts typically examine the severity of the violation and duration of the conditions giving rise to the breach as well as the effectiveness of steps taken by the landlord to abate those conditions (id at p.329).While Respondent testified that he incurred significant additional costs for food due to having no gas in the Subject Premises, the court must determine how much less than the agreed rent the Subject Premises was worth without gas. The court finds that Respondent is entitled to an additional 5 percent abatement above the 10 percent already provided by the landlord for the lack of gas.While Petitioner’s motion to amend its claim to include rent due through April 2019 at trial was granted. Petitioner failed to prove an agreement to pay rent, either express or implied, for any period after August 2018.It is well settled that a nonpayment proceeding lies only where there is a landlordtenant relationship between the parties and there has been a default “in the payment of rent, pursuant to the agreement under which the premises are held” (RPAPL 711[2]; see e.g. Putnam Realty Assoc., LLC v. Piggot, 44 Misc 3d 141[A], 2014 NY Slip Op. 51306[U], 2014 WL 4250375 [App. Term, 2d, 11th & 13th Jud. Dists. 2014]; *7 Strand Hill Assoc. v. Gassenbauer, 41 Misc 3d 53, 975 N.Y.S.2d 526 [App. Term, 2d, 11th & 13th Jud. Dists. 2013]; 615 Nostrand Ave. Corp. v. Roach, 15 Misc 3d 1, 832 N.Y.S.2d 379 [App. Term, 2d & 11th Jud. Dists. 2006]; see also Kimball Ave. Assoc., LLC v. Walsh, 43 Misc 3d 135[A], 2014 NY Slip Op. 50660[U], 2014 WL 1622920 [App. Term, 9th & 10th Jud. Dists. 2014] ). [329 Union Bldg. Corp. v. LoGuidice, 47 Misc 3d 1, 6-7 (NY App. Term. 2015)].CONCLUSIONBased on the foregoing, Petitioner is entitled to a final judgment of money and possession in the amount of $1607.88 (1692.50-5 percent ) for all rent due and owing through August 2018. Issuance of the warrant of eviction is stayed five days for payment.Additionally, Petitioner is directed to correct the C violation as required by law, and restore gas to the Subject Premises forthwith.This constitutes the decision and order of this Court.2Dated: New York, New YorkMay 2, 2019
