DECISION & ORDER BACKGROUND & PROCEDURAL HISTORY This is a Nonpayment Proceeding which was commenced by Petitioner Sheridan 1511, LLC seeking to recover possession of Apartment A75 at 1511-1521 Sheridan Avenue, Bronx, New York based on the allegation that the Rent Stabilized tenant in occupancy, Respondent Mohamed U. Fofana, failed to pay past due rent. The Petition is dated June 15, 2018, alleges a monthly rent of $1124.26 and seeks “rent and additional rent” arrears of $3672.78, comprised of $1124.26 per month for April, May and June 2018, a $50 balance for March 2018 and a legal fee of $250. A written rent demand seeking the same monies sought in the Petition except for the $250 legal fee is attached to the Petition along with an affidavit of its service. Respondent pro se filed an Answer to the Petition on June 22, 2018 asserting a “general denial” with the following additional language: “Disagrees with amount. Financial Hardship.” On the initial court date of June 27, 2018, Respondent retained counsel and the case was adjourned to August 17 by stipulation which also allowed for amendment of the Petition to date and filing of an Amended Answer. On August 17 the case was adjourned to September 17 by stipulation which acknowledged that Respondent had served and filed an Amended Answer raising, inter alia, an affirmative defense and counterclaim of breach of warranty of habitability, and that Petitioner had provided a rent breakdown alleging arrears of $5496.30 due through August 31, 2018 prior to crediting a payment of $1000 Respondent tendered in court that day. Petitioner also agreed to inspect and repair as required by law the following conditions: “a. Cracked ceilings and walls throughout the apartment; b. Peeling paint throughout the apartment; c. Broken and cracked floor tiles and wood throughout the apartment; d. Roach infestation throughout the apartment; and e. Mice infestation throughout the apartment.” On September 17 the case was adjourned by stipulation to November 14 “for completion of repairs/all purposes” with access scheduled on two dates for Petitioner to inspect and repair as required by law the following conditions: “a. Mice infestation; b. Roach infestation; c. Damaged bedroom door; d. Missing door handle in bedroom; e. Paint and plaster throughout; and f. Floors throughout.” On November 14 the case was adjourned by stipulation to December 21 “for completion of repairs and all purposes” with access scheduled on two dates for Petitioner to inspect and repair as required by law the following conditions: “a. Mice infestation; b. Roach infestation; c. Bubbling, peeling and damaged paint and plaster in bathroom ceiling; d. Leak in bathroom ceiling; e. Damaged paint on bathroom door; f. Missing/defective light fixtures throughout; g. Defective buzzer/intercom; h. Damaged paint in hallway.” On December 21 the case was adjourned by stipulation to February 15, 2019 “for completion of repairs and for Petitioner’s counsel to review settlement with Petitioner” and for “trial/settlement” with access scheduled on two dates for Petitioner to inspect and repair as required by law the following conditions: “a. Mice infestation; b. Roach infestation; c. Damage/cracked floor tiles; d. Defective buzzer/intercom; e. Broken kitchen cabinets.” On February 15 the case was transferred to Part X and then scheduled for a pre-trial conference in Part T on March 15. On March 15 the case was adjourned to May 1, 2019 for trial which took place on that day as well as June 4 and August 7. Post-trial briefs were filed on September 6, 2019. TRIAL Petitioner’s Case At trial, Petitioner proved its prima facie case through the testimony of its agent Benny Chaskelson who works for Asden Properties. Certified copies of Petitioner’s deed dated March 30, 2017, the building’s multiple dwelling registration statement from the New York City Department of Housing Preservation and Development (HPD) listing Asden Properties as Petitioner’s management company and a “Rent Roll” from the New York State Division of Housing and Community Renewal were admitted into evidence without objection, as was a copy of Respondent’s current Rent Stabilized Renewal Lease, reflecting a monthly rent of $1124.26 for the period of September 1, 2017 through August 31, 2019. The Court took judicial notice at Petitioner’s request of its predicate rent demand, the notice of petition and petition and the affidavits of service which are in the court file. Mr. Chaskelson answered “no” when asked if Respondent paid what was demanded in the rent demand and “yes” when asked if Respondent still owes rent. The Court also took judicial notice, at Petitioner’s request, of the contents of the court file for a prior nonpayment proceeding between the parties, L&T Index #53429/2017, in which the petition was filed on September 18, 2017 and Respondent pro se filed an answer using the court’s form and raising simply a “general denial.” At the first appearance Respondent retained counsel and the case was adjourned to November 17, 2017. Respondent by counsel moved to amend his answer to include, inter alia, a counterclaim based on breach of the warranty of habitability. The motion and the case were settled on November 17, 2017 in an agreement which awarded Petitioner a possessory judgment and a money judgment for $3779.44 and allowed for issuance of the warrant of eviction forthwith, execution stayed through December 31, 2017 for payment. Respondent filed an order to show cause which was settled on the return date of January 23, 2018 by a stipulation in which Petitioner acknowledged receipt of a check covering the arrears owed through January 31, 2018 and which discontinued the case, with the judgment and warrant vacated. Petitioner rested its case and Respondent moved orally to dismiss. The Court denied the motion without prejudice to renewal at the end of the case. Respondent’s Case Respondent’s case consisted of his own testimony and various photographs which were admitted into evidence. Respondent testified that he has lived in the subject apartment since 2005 and that he lives with his wife, their four children ages 7, 11, 13 and 17 and his mother-in-law Respondent works full-time, his wife works part-time and his mother-in-law is home most of the time. Respondent’s apartment is on the seventh floor of the building, which has an elevator. The building has a resident superintendent, whom Respondent sees at least once a week, usually on Fridays, either in the lobby of the building or outside near the trash area. When asked about the condition of the apartment since 2005 Respondent’s answer was “terrible”. When asked if he told the landlord about the problems in the apartment Respondent answered that he would tell the super, the super would tell him to call the landlord, he would call the landlord, the voice mailbox would be full, he would go back to the super and the super again would tell him to talk to the landlord. More specifically, Respondent testified about the following conditions, most of which have existed off and on in the apartment since 2005 when he moved in: Infestations of cockroaches and mice throughout apartment. Respondent testified that he adds his name to the exterminator’s sign-up sheets whenever he sees them but no one ever comes. He has purchased traps for the mice and sprays for the cockroaches every month. He personally has found numerous mice in every room of the apartment and continues every day to see mouse droppings, to catch mice in glue traps and to find household items damaged by the mice. He finds mouse droppings on the kitchen stove every morning when he goes to make his coffee. The cockroaches are mostly in the kitchen, although Respondent himself recently resolved this problem using a new type of treatment. Defective ceiling light fixtures throughout apartment (foyer; hallway near bathroom and children’s bedroom; kitchen; bathroom; bedrooms). All but the bedroom light fixtures were fixed in March 2019. Peeling paint throughout apartment. Initially Respondent corrected the problem himself; when it recurred around 2007 he called HPD and the landlord fixed it. When it recurred in 2017 and 2018 it was not corrected until January 2019. Broken flooring throughout apartment. The hallway floors were fixed in late 2018. The kitchen flooring problem started in 2017, Respondent told the super when he signed his lease that started in 2017, repairs were done in January 2019, the tiles started breaking again soon after and then they were fixed again. Broken floor tiles in bathroom which have been repaired five times; in December 2018 or January 2019 the whole floor was removed and new tiles were installed. Kitchen cabinets infested with cockroaches and mice; also, one cabinet fell on Respondent last year. Major water leak through bathroom ceiling from apartment above in November 2018 making the bathroom unusable for a month or two during which Respondent and his family had to use a neighbor’s bathroom on another floor. The bathroom sink basin and vanity have been replaced more than four times, most recently in late 2018 after the City inspected. The faucet was broken, the sink was leaking and the floor of the vanity was rotten. For a period of time they would use the bathtub to brush their teeth because they couldn’t use the sink. The toilet flushometer broke repeatedly, requiring Respondent and his family to flush the toilet with a bucket of water. After the City inspected, and after the toilet flushing device had been broken for a month, the landlord changed the whole tank. The building’s main entrance door doesn’t always close. The super fixes it but then it stops working again, approximately once a month. The last time it was fixed was two months ago, when the “whole unit” was changed. Water leaks through the ceiling of the building’s lobby every year in the winter or spring, resulting in chipping paint. This was fixed during the past year. Frequent elevator outages for two weeks or longer, approximately once a month. Respondent and his family rely on the elevators because their apartment is on the seventh floor. Two years ago, the elevator was out of service for two months. Respondent had to carry his mother-in-law up and down the stairs whenever she needed to go out. Another time the elevator was out of service for three months. Records from the City’s Department of Buildings (DOB) website were admitted into evidence, comprised of: a 1-page “Property Profile Overview”; 21 pages listing 212 total complaints for the period of 07/18/1989 through 08/06/2018; 6 pages of Elevator Records, indicating there are 4 elevators at 1511 Sheridan Avenue and listing 72 violations with the oldest “DISP DATE” of 02/14/1990 and the most recent “DISP DATE” of 11/19/2012, all showing a “DISP CODE” of “DISMISSED”; 15 pages of active elevator violations issued from 06/01/2016 to 01/26/2018; 20 pages of resolved elevator violations issued from 06/13/2006 to 09/01/2017. 17 pages listing 145 ECB violations marked either “RESOLVED” or “OPEN”: 140 “RESOLVED” — many of which indicate “ELEVATOR” as the “Viol Type”; 5 “OPEN” — none for “ELEVATOR” The common stairways which must be used when elevators are out of service are in poor condition, with cracked and broken steps. Respondent fell earlier this year on a broken step and a week or two later it was replaced. Photographs Respondent took in January and February 2019 of some of the conditions he testified about were admitted into evidence including five of dead mice, two of piles of mice droppings, two of dead cockroaches and seven of light fixtures throughout the apartment. Older photographs of the broken flooring in various locations, peeling paint and water leak through the bathroom ceiling in November 2018 were also admitted into evidence. Respondent has called the City twice, and the City has sent inspectors. Two envelopes of certified records produced by HPD in response to a subpoena were entered into evidence without objection. The certification page indicates that HPD produced 602 pages of records for 1511 Sheridan Avenue dated from 2005 to the present. The envelopes contain the following: A 9-page Open Violation Summary Report dated 8/15/2018 reflecting 50 open violations for the building, two of which pertain to Respondent’s apartment: issued on 5/3/2018 (reported on 4/27/18) to “abate the nuisance” consisting of roaches and mice “in the entire apartment” (violation ID ## 12364591 and 12364592, respectively). A 67-page Complaint History Report dated 8/15/2018 reflecting all complaints called in for the building from 1/01/2005 to 8/15/2018, ten of which pertain to Respondent’s apartment1: seven dated 3/23/2018 (broken wall tiles in bathroom, dirty wall paint throughout apartment, broken sink basin in bathroom, cracked toilet tank, defective kitchen cabinets, knobs missing from stove, defective flooring throughout apartment); three dated 10/13/2008 (inoperative refrigerator, chipping kitchen sink, mice). A 522-page Closed Violation Summary Report dated 8/15/2018 reflecting all closed violations for the building from 1/01/2005 to 8/15/2018, thirteen of which relate to Respondent’s apartment2: three reported on 12/26/2007 and issued on 01/03/2008 (refit windows in one room, abate nuisance of vermin mice, abate nuisance of vermin roaches); ten reported on 4/27/2018 and issued on 05/03/2018 (paint entire apartment, replace kitchen cabinets, abate nuisance of vermin mice, abate nuisance of vermin roaches, repair or replace carbon monoxide and smoke detectors, repair ceramic wall and floor tiles in bathroom, replace wash basin and wash basin cabinet, replace broken toilet tank cover, repair toilet flushing apparatus). During Respondent’s testimony on June 4, 2019 the Court took judicial notice of HPD’s website, which reflected an “OPEN” status for the “nuisance” violations issued on May 3, 2018 for mice and cockroaches. Respondent acknowledged on cross-examination that this is not the first nonpayment proceeding Petitioner has brought against him and that he has been to Housing Court many times. Respondent testified that he did not send written communications to Petitioner about the repairs he has needed; he would try to call the management office and when he couldn’t get through or even leave a message he would talk to the super. On re-direct Respondent testified that he would try calling the management company at the telephone numbers listed on his rent bills and on the flyers in the hallway and elevator. However, he could never get through, could never leave a message because the mailbox was always full and that was why he communicated with the super — either in person, by telephone or by text — including sending him photographs that he took on his phone. The problems still existing in the apartment are the infestation of mice and the ceiling light fixtures in the bedrooms. Respondent still sees mice every day; when asked during his direct testimony on May 1 when he last saw a mouse in his apartment Respondent answered, “This morning.” When asked during his re-direct testimony on August 7 when he last saw a mouse in his apartment Respondent answered, “Last night.” When asked how it affects him to live with this problem Respondent answered that it was “not conducive to living there” and that it was “not pleasant to see mice jumping all over the place…[and] have to clean up droppings all over the place”. Respondent himself eliminated the cockroach problem using a method a family friend showed him that was effective as of approximately March 2019. Petitioner’s Rebuttal Case Petitioner offered no rebuttal testimony or other evidence. DISCUSSION As to the amount of arrears owed, the only proof of rent owed was the testimony of Petitioner’s agent Mr. Chaskelson who answered “no” when asked if Respondent paid what was demanded in the rent demand and “yes” when asked if Respondent still owes rent. No other testimony was elicited and no rent ledger or other records of Respondent’s rent account to date were offered into evidence. Accordingly, the only rent this Court finds to be unpaid is the $3422.78 stated in the rent demand and Petition as all rent due through June 2018, which Respondent did not dispute. As there was no evidence presented as to what if any rent might be due after the month of June 2018, and no request was made to amend the Petition to date, the Court cannot make any findings as to any rent which may have come due and remains unpaid after June 2018. As to Respondent’s defense and counterclaim for breach of the warranty of habitability, New York Real Property Law §235-b provides for an implied warranty of habitability which requires landlords of residential premises to keep them “fit for human habitation” and free of conditions that are dangerous to the life, health or safety of the tenants. Park West Management Corp v. Mitchell (47 NY2d 316, 327, 391 NE2d 1288, 1294-1295, 418 NYS2d 310, 317 [1979]). As explained by the Court of Appeals in Park West Management Corp v. Mitchell, supra, “a landlord is not required to ensure that the premises are in perfect or even aesthetically pleasing condition; he does warrant, however, that there are no conditions that materially affect the health and safety of tenants. For example, no one will dispute that health and safety are adversely affected by insect or rodent infestation, insufficient heat and plumbing facilities, significantly dangerous electrical outlets or wiring, inadequate sanitation facilities or similar services which constitute the essence of the modern dwelling unit.” If a landlord breaches the warranty of habitability, the proper measure for damages is”…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 v. Mitchell, supra. 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 a summary nonpayment proceeding in which the tenant counterclaims, or pleads as a defense, breach by the landlord of its duty to maintain the premises in habitable condition. Id. The time period at issue in this proceeding begins with the month of February 2018, not June 2012 as argued by Respondent. This is because Respondent “might or ought to have litigated”, Stokes v. Stokes (172 NY 327, 344, 65 NE 176 [1902]), any breach of warranty habitability claims he had through January 2018 in the prior nonpayment proceeding Petitioner brought against him under Bronx Co. L&T Index #53429/2017. Although originally Respondent pro se had raised only a “general denial” in his answer to that earlier nonpayment proceeding, he then retained legal counsel and moved to amend his answer to include counterclaims based on breach of the warranty of habitability. The case was settled by a so-ordered, two-attorney stipulation on November 17, 2017 which granted Petitioner a judgment with execution of the warrant stayed to provide Respondent time to pay. Thereafter, on the January 23, 2018 return date of Respondent’s order to show cause seeking a stay of eviction, the case was discontinued pursuant to a second so-ordered, two-attorney stipulation. No explanation was provided at the trial in the current proceeding as to why those stipulations did not reference any conditions in the apartment and set up access dates for them to be repaired, did not allow the proposed amended answer to be interposed and did not award Respondent any abatement of his rent. On the facts presented, this court follows “the general rule that a judgment of a court of competent jurisdiction is final and conclusive upon the parties, not only as to the issues actually determined, but as to every other question which the parties might or ought to have litigated.” Stokes, supra. The Appellate Term’s decision in 153rd St Apt LLC v. Alveranga (30 Misc3d 129[A], 958 NYS2d 647 [App Term 1st Dep't 2010]), cited by Respondent’s counsel for the proposition that “intervening cases and stipulations do not prevent tenants from reaching back to assert their [breach of warranty of habitability] claim”, Respondent’s Post-Trial Memorandum of Law at page 14, is inapplicable as the court in that case specifically noted that “tenant’s current habitability claim alleges a new breach not covered by a prior stipulation.” Here, what Respondent is precluded from litigating and securing a rent abatement for is not any new breaches that occurred after the prior proceeding was settled on January 23, 2018 but rather any breach dating back prior to that date. Such claims for breach of the warranty of habitability “might or ought to have been litigated” in the prior proceeding under Park West Management Corp v. Mitchell, supra and no evidence has been presented showing otherwise. Turning to the conditions which existed after January 23, 2018, Respondent testified credibly that there have been persistent and pervasive infestations of cockroaches and mice throughout his tenancy since 2005 which he has complained repeatedly about to Petitioner’s superintendent on the premises. Respondent cannot prepare his daily morning coffee without having to clean up mice droppings on his stove. Respondent regularly catches mice in traps he sets in various places in the apartment, as illustrated by graphic photographs admitted into evidence. Until recently, the glue traps he put down to catch mice also were filled with cockroaches on a regular basis, also evidenced by photographs admitted into evidence. These infestations seriously undermine the habitability of the apartment and cause daily aggravation to Respondent and his family. Petitioner offered no testimony to rebut Respondent’s claims and it cannot be disputed “that health and safety are adversely affected by insect or rodent infestation…”. Park West Management Corp v. Mitchell, supra (47 NY2d at 328, 391 NE2d at 1294-1295, 418 NYS2d at 317). Under similar circumstances, courts have found tenants to be entitled to rent abatements of 40 percent of the rent. See 100 W 174 LLC v. Haskins (45 Misc3d 1222[A], 5 NYS3d 329 [Civ Ct Bx Co 2014]), citing 501 New York LLC v. Anekwe (14Misc3d129[A], 836 NYS2d 485 [App Term 2nd Dep't 2006])(upwardly modifying the trial court’s rent abatement for rat and cockroach infestations and damaged cabinets from 5 percent to 40 percent ). While Respondent’s compelling testimony and illustrative photographs constitute sufficient proof of the conditions, Mite v. Pipedreams Realty (190 Misc2d 543, 740 NYS2d 564 [Civ Ct Bx Co 2002]), the infestations are also documented by the “nuisance” violations HPD issued for these conditions on May 3, 2018 which had not been certified as corrected at least as of June 4, 2019. Petitioner has had notice of these conditions both because of Respondent’s repeated complaints to the superintendent at the premises, Seward Park Hous Corp v. Cohen (287 AD2d 157, 167, 734 NYS2d 42, 51 [1st Dep't 2001]), and because of the violations HPD placed. Further, even though the parties through counsel scheduled access dates to address the mouse and cockroach infestations throughout the pendency of this proceeding prior to trial — on August 17, 2018, September 17, 2018, November 14, 2018 and December 21, 2018 — there was still an unresolved mouse infestation as recently as August 7, 2019, when Respondent testified that the last time he had seen a mouse in the apartment was the night before. The only reason the cockroach infestation has been eliminated is that, as of approximately March 1, 2019, Respondent himself learned of and implemented an effective treatment method. Accordingly, for the 19-month period from February 2018 through August 2019 Respondent is entitled to a 25 percent abatement of the rent due to the unresolved infestation of mice. For the 13-month period from February 2018 through February 2019 Respondent is entitled to an additional 5 percent abatement due to the cockroach infestation which Respondent testified he had resolved as of March 1, 2019. Further, the court finds that other conditions existed at least as of the August 17, 2018 stipulation and continued through some point in January or February 2019 which warrant an additional 10 percent abatement, see, e.g., Tower West Associates v. Derevnuk (114 Misc2d 158, 450 NYS2d 947 [Civ Ct NY Co 1982]), for this approximately 5-month period: defective flooring in the hallway, kitchen and bathroom; peeling paint throughout the apartment; defective light fixtures throughout the apartment. Petitioner offered no evidence or testimony about any attempts to make repairs during this time period; rather, it was Respondent who testified that Petitioner had substantially corrected these conditions by March 2019, with only the defective bedroom light fixtures remaining unresolved. Respondent’s testimony was not clear and the record otherwise is insufficient to show dates after January 23, 2018 when the conditions existed involving the bathroom flushometer, kitchen cabinets, elevator, building entrance door, water leaks into the public lobby and public stairway; accordingly, the Court declines to award a further abatement for these items. See, e.g., Mantica R Corp NV v. Malone (106 Misc2d 953, 436 NYS2d 797 [Civ Ct NY Co 1981]). Although HPD wrote up violations of some of these items on April 27, 2018 and sent notice to the landlord on May 3, 2018, HPD’s records show that by June 8, 2018 it had received the landlord’s certification that the violations had been corrected. Based on the foregoing, the Court finds that Respondent is entitled to an abatement totaling $6633.21, comprised of the 25 percent abatement for 19 months for the mice infestation nuisance [25 percent x $1124.26 = $281.07 x 19 months = $5340.33] plus the 5 percent abatement for 13 months for the cockroach infestation nuisance [5 percent x $1124.26 = $56.21 x 13 months = $730.73] plus the 10 percent abatement for 5 months for the defective flooring, peeling paint and defective light fixtures [10 percent x $1124.26 = $112.43 x 5 months = $562.15]. CONCLUSION Setting off the abatement warranted by Petitioner’s breach of the warranty of habitability through August 2019 of $6633.21 against the unpaid rent due through June 2018 of $3422.78, and without making any determination given the lack of evidence as to what if any rent was not paid after June 2018, results in a balance due to Respondent of $3210.43. Accordingly, the Petition is dismissed with prejudice through June 2018 and Respondent is entitled to a money judgment for $3210.43. Further, Petitioner is hereby ordered to “abate the nuisance consisting of mice in the entire apartment”, as set forth in HPD violation ID # 12364592, by September 30, 2019. This constitutes the Decision and Order of this Court, copies of which will be mailed to the parties’ attorneys unless picked up in the Part forthwith. The documents entered into evidence at trial will be held for thirty days and may be picked up from the Part S/T clerk in Room 409/410 of the courthouse. Dated: September 11, 2019 Bronx, New York
