GL Botanical LLC v. Forde Jr.

DECISION/ORDER   Petitioner commenced this residential nonpayment proceeding on or about May 7, 2019, seeking rent it alleged became due for Apartment #1R located at 2995 Botanical Square, Bronx, New York. The petition seeks rent arrears totaling $3,153.85 for the period of February 2019 through May 2019 at the rate of $1,045.77 monthly. Respondent initially appeared pro se and interposed an answer asserting a general denial as well as a counterclaim for breach of the warranty of habitability and stated that he was withholding rent because of the conditions in the apartment which led to injury. Respondent subsequently appeared by counsel. The proceeding was then adjourned and when no resolution could be reached it was set down for a hearing on Respondent’s abatement claim. On July 12, 2019, the date on which the hearing was scheduled, upon Petitioner’s default the petition was dismissed. However, a hearing was held on Respondent’s counterclaim for breach of the warranty of habitability and both sides submitted post-trial memoranda on the issues raised at the hearing. At the hearing, Respondent testified that the he first moved into the subject apartment on October 29, 2018, and at the time he noticed that there were roaches, mice droppings, chipping paint, water leaks from the ceiling, a defective radiator, the windows were not closing, there were rusty pipes in the bathroom, the apartment needed to be painted, the floors needed to be re-done, and that he is unable to turn on the water in the bathroom without using a screwdriver because the pipes are rusted¹. According to Respondent, he first notified Petitioner of the conditions in the apartment at the lease signing on October 28, 2018 which took place at Petitioner’s office in Brooklyn, New York, and later informed Petitioner via email. On that date, Respondent spoke to Joshua Silberberg, an agent of the Petitioner, and provided Mr. Silberberg a list of repairs that he was informed would be taken care of. However, the conditions continued to exist in the apartment, and even though the apartment is still roach infested the other conditions were corrected in May 2019. In addition to the conditions noted above, Respondent testified that one of the kitchen cabinets has been falling off the wall since May 2019, and that he informed Petitioner via email and spoke to the superintendent about the condition.² One of the other kitchen cabinets was later replaced but it was placed over an electrical outlet and rendered the outlet unusable.³ Respondent testified that he first spoke to the superintendent and Josh Silberberg via telephone regarding this condition in May 2019 and last spoke to the superintendent in early July 2019 but that Petitioner was also on notice when he commenced the HP action in January 2019. In addition, Respondent testified that the bathroom vanity is falling off the wall but that it was repaired in early July 2019 after being broken for two months.⁴ Respondent also testified that the pipe behind the toilet bowl is leaking,⁵ that he informed Petitioner of this condition via email and spoke to the superintendent about the condition. However, the condition has existed in the apartment from the time he first moved into the apartment on October 28, 2018. The light switch has also been off the wall in the bathroom since the time he moved in on October 28, 2018 and Respondent informed Petitioner via e-mail but Petitioner has yet to address the condition.⁶ Notwithstanding the issue with the light switch, Respondent testified that it still functions despite being ill placed. Respondent further testified that the tiles in the bathroom have excess grout, are slanted and twisted, and are an “eyesore”. According to Respondents, these conditions have existed in the apartment since the time he first moved in and continue to exist.⁷ Respondent further testified that the windows throughout the apartment do not close which cause a draft in the apartment.⁸ According to Respondent, this has been an issue from the time he moved in and continues to exist despite Petitioner having been notified. In addition, there are no electrical outlets in the bathroom and although Respondent informed Petitioner of the condition in March 2019 via email and telephone, the condition still exists.⁹ Respondent testified that as an asthma sufferer his health has been affected because of the defective window stops and the spacing in the floor which cause a draft. Respondent testified that he called 311 sometime in December 2018 to complain about the conditions, and when Petitioner failed to address the repairs he commenced an HP action against Petitioner. Respondent also introduced into evidence a series of emails he sent Petitioner about the conditions in the apartment. On February 20, 2019, Respondent sent an email to Manny Silberberg¹⁰ to an email address Respondent testified he found on Petitioner’s website. In the email, Respondent informed Petitioner that the apartment was cold, the windows were not closing properly, and that there was spacing in the floors causing a draft. Respondent testified that he never received a response to this e-mail. Respondent sent another email to Manny Silberberg on February 26, 2019¹¹, in which Respondent informed Petitioner that the bathroom needed to be fixed. Specifically, Respondent informed Petitioner that the ceiling was painted but was uneven and sloping in the middle, the sink and cabinet needed to be replaced, the bathroom needed a towel and soap holder, the tiles were uneven and off the walls, the shower head was incorrectly sized, the sink fixtures needed to be replaced and tightened, and the kitchen cabinets needed to be moved so that the walls could be painted because of cracks behind the cabinets. In that email, Respondent also informed Petitioner that there was a piece of metal sticking out of the radiator and that there was water damage that had been painted over. Respondent further informed Petitioner that he had been out of the apartment for a week but did not mind, and expressed the need to return to the apartment. According to Respondent, he was out of the apartment between February 24, 2019 and April 8, 2019 because he was unable to breathe as a result of the dust in the apartment, the lack of heat, and the paint fumes while the repairs were underway. Respondent testified that he was informed that the repairs would be completed one room at a time, but that Petitioner began work on several rooms in the apartment simultaneously, making it difficult for Respondent to stay in the apartment. Then on March 6, 2019, Respondent sent Petitioner another email,¹² informing Petitioner that the work had not been completed and that the repairs in the bathroom had not commenced. Respondent testified that he did not receive a response to this email either. In this email to Petitioner, Respondent also informed Petitioner that the floors were not sealed, that the tiles were slanted, that the cabinet was rusty, that the sink was old and out of position, the bedroom was not repaired, the paint job was patchy, the radiator in the bathroom and kitchen needed to be fixed, and the living room ceiling had water damage. Respondent also informed Petitioner that he had not slept in the apartment in weeks. On cross-examination, Respondent testified that Petitioner commenced a nonpayment proceeding against him sometime in January 2019¹³ and that he commenced an HP action against Petitioner around the same time. Respondent acknowledged that on January 2, 2019, the parties entered into a stipulation of settlement which listed conditions in need of repair in the apartment, but that when he commenced the HP action he complained of more conditions than the conditions listed in the January 2, 2019 stipulation. Respondent also acknowledged that of the violations that were issued, only three violations remain outstanding and he did not remember if he had sought to restore the HP action to seek relief on the repairs that remained outstanding. Although, Respondent testified to the presence of rusted pipes in the bathroom¹⁴, he also testified that the pipes are not in the shower and do not affect his ability to shower. Respondent further testified that even though the kitchen cabinets are separated from the wall, they have not fallen off the wall.¹⁵ And, despite the fact that the cabinet is blocking the outlet, the outlet is usable and functional.¹⁶ As far as the water leak in/by the toilet, Respondent testified that it does not otherwise affect his ability to use the toilet,¹⁷ but added that even though the bathroom window closes it does not lock¹⁸. Respondent further testified that the repairs were commenced in February 2019 and that because multiple rooms were being worked on simultaneously, he was not able to stay in the apartment even though management had informed him that he would be able to stay in the apartment while the work was in progress. Respondent also testified that he called 311 in December 2018 to report the lack of heat in the apartment and again in February 2019 but missed the inspection. Notwithstanding his complaints to 311, Respondent testified that he did not take temperature readings in the apartment or keep any logs of the temperature. On re-direct, Respondent testified that Petitioner’s agents came to the apartment on the dates stipulated for access in the January 2, 2019 stipulation between the parties. However, the agents inspected the premises but did not actually start the work until February 19, 2019. And, even though Respondent informed Petitioner that he could not stay in the apartment during the work, he received no response from Petitioner. Pursuant to RPL §235-b “Warranty of Habitability”, every written lease shall be deemed to covenant and warrant that the premises are fit for human habitation and for the uses reasonably intended by the parties and that the occupants of such premises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety. “To prevail on a defense or counterclaim based on a breach of the warranty of habitability, a tenant must offer proof as to the dates, severity and duration of the conditions complained of. Additionally, the tenant must show that the landlord was provided with access and an opportunity to repair the conditions, yet failed to do so” (EB Management Properties, LLC v. Sultan Al Maruf, 63 Misc 3d 155(A), 2019 NY Slip Op 50813[U]) (internal quotation marks and citation omitted). The “proper measure of damages for breach of the warranty is the difference between the fair market value of the premises if they had been 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, 47 NY2d 316, 327, 418 NYS2d 310 [1979]). And, although substantial violations of a housing code constitute prima facie evidence that the premises are not in habitable condition, where the code violation is de minimis it may not necessarily constitute a breach of the warranty of habitability (id). The court also took judicial notice of the Department of Housing Preservation and Development (“HPD”) violation summary report for the subject apartment which listed three “Class C” violations issued on March 28, 2019 for: a broken or defective window sash; (2) the mice infestation; and (3) the roach infestation. According to Respondent, these conditions continue to exist in the apartment. In its post-trial memorandum, Petitioner argued that Respondent’s counterclaim should be dismissed, or in the alternative be limited to the period of January 2019 forward as a result of the stipulation of settlement executed by the parties in the previous nonpayment proceeding commenced under index number 63348/18. Petitioner further argued that no abatement should be awarded to Respondent as the conditions complained of are cosmetic in nature, and all but three of the violations issued by HPD within the context of the HP proceeding commenced by Respondent against Petitioner under index number 4769/19 have been corrected. Despite the above, Petitioner argued that Respondent has not shown that these conditions are a threat to his life, health or safety. In his post-trial memorandum, Respondent argued that the evidence at the hearing established that the conditions existed, that Petitioner was on notice of the existence of the conditions in the apartment, that there were no issues with access to the apartment and that the conditions had a significant impact on the health, comfort, and well-being of Respondent and his two sons. In addition, Respondent argued against Petitioner’s claim that Respondent should be precluded from litigating his counterclaim based on a stipulation entered into between the parties in a prior proceeding. Respondent argues that because Petitioner did not interpose an answer to his counterclaim, Petitioner may not be heard now in defense of that counterclaim. Notwithstanding, Respondent argues that any preclusion doctrine employed by the court only applies to matters adjudicated on the merits and not matters disposed of by stipulation. Moreover, Respondent argues that New York State has a permissive counterclaim statute and therefore he was not required to assert his breach of the warranty of habitability claim in the prior nonpayment proceeding and is not precluded from asserting this claim now. At the hearing, Respondent established that there were and continue to be conditions in the apartment. The issue for the Court is to determine whether these conditions are in breach of the warranty of habitability, and if so, the extent of the abatement these conditions warrant. At the outset, this Court finds that CPLR §402 precludes Petitioner from seeking dismissal of Respondent’s counterclaim at this stage of the proceeding as it requires that there be a reply to a counterclaim which Petitioner did not interpose. Notwithstanding, it is well-settled that the doctrine of “res judicata, or claim preclusion, requires a final adjudication on the merits, and a party seeking to invoke collateral estoppel, or issue preclusion, must demonstrate ‘that the particular issue was actually litigated, squarely addressed, and specifically decided in a prior proceeding’” (135 Evergreen Corp v. Delvalle, 63 Misc 3d 157 [A], 2019 NY Slip Op 50831[U]) (internal quotation marks and citations omitted). And, “an issue is not actually litigated if, for example, there has been a default, a confession of liability, a failure to place a matter in issue by proper pleading or even because of a stipulation” (Kaufman v. Eli Lilly & Co., 65 NY2d 449, 492 NYS2d 584 [1985] (emphasis added). Applying the above principles to this proceeding, this Court finds that the prior stipulation entered into between the parties under index number 63348/18 does not preclude Respondent from seeking a rent abatement from October 2018 as the stipulation between the parties did not include an abatement of the rent for the conditions complained of herein. Turning to Respondent’s counterclaim, the January 2, 2019 stipulation resulted in a final judgment in favor of Petitioner in the sum of $3,783.08, for all rents which accrued through January 2019. The stipulation also listed the following conditions which were in need of repair: windows which were not closing throughout the apartment, the kitchen floor, need for painting throughout the apartment, mold in the kitchen and bathroom, the bathroom and kitchen cabinets, the bathroom floor, and cracks in the walls. Access was arranged for January 16, 2019 and January 17, 2019. Then by order to show cause dated January 24, 2019, Respondent filed an HP action against Petitioner under index number 4769/19 seeking an order directing Petitioner to correct conditions in the apartment. Contemporaneously with the order to show cause, Respondent requested an inspection of the apartment by HPD and the request listed several conditions in need of inspection including the conditions listed in the January 2, 2019 stipulation. Upon inspection of the apartment, on February 9, 2019, HPD issued a total of 31 violations: six “Class A” violations, 5 “Class B” violations, and 20 “Class C” violations. Most of the conditions that resulted in violations overlapped with the conditions Respondent complained of except for a few conditions that differed. Petitioner was on notice that there were conditions in the apartment in need of repair from as early as October 18, 2018 when Respondent moved into the subject apartment. Then Petitioner was once again placed on notice that conditions existed in the apartment when the parties entered into the January 2, 2019 stipulation. Petitioner was then again placed on notice that the conditions continued to exist in the apartment when the parties appeared in the HP action and entered into the consent order dated February 13, 2019. Based on the Respondent’s credible testimony, work in the apartment did not commence until February 2019 and was not completed until May 2019 with the exception of the three “Class C” violations which continued to exist as of the date of the hearing in this matter in July 2019. Based on the foregoing, Respondent is granted a rent abatement as follows: 5 percent from October 2019 through May 2019 (8 months) for the conditions Respondent complained of at the lease signing which included chipping paint, water leaks from the ceiling, a defective radiator, rusty pipes in the bathroom, painting, and the floors¹⁹; 30 percent from February 2019 through May 2019 (4 months) for the HPD violations for conditions not included in the list of conditions in Respondent’s complaint to Petitioner in October 2018 and for the conditions that resulted in HPD violations; and 10 percent for the three “Class C” violations for the mice, the roaches and the defective windows throughout the apartment which Respondent credibly testified were an issue from October 2018 and continued to be open violations at the time of the hearing in July 2019. The balance of Respondent’s complaints were for conditions which were cosmetic in nature, specifically the conditions depicted in the photographs admitted into evidence at the hearing, for which this Court finds no abatement is warranted. Moreover, the Court notes that although “Class C” violations were issued for certain conditions, the extent of those conditions remains unclear as HPD will issue violations for conditions when there is evidence of the condition but not necessarily note the extent of the condition. Based on the foregoing, Respondent is granted a rent abatement in the amount of $2,196.11 which Petitioner is directed to credit Respondent’s account upon receipt of this Court’s decision. A copy of this decision/order will be mailed to all. All trial exhibits may be picked up in Part G, Room 560 within 30 days after receipt of this decision/order. This constitutes the decision and order of this Court. Dated: October 24, 2019