Jacqueline Avignone sued her landlords Stephen and Jacqueline Valigorski (defendants) for breaching the implied warranty of habitability (RPL §235-b) because defendants refused to remediate loud noises and a malodorous smell and to provide hot water and adequate water pressure. Additionally, Avignone demanded to be awarded a civil penalty under RPAPL §768. Defendants interposed a counter claim for the non-payment of rent. The court held a trial and now finds that the credible evidence established the following facts. Avignone rented a newly refurbished second-floor apartment from defendants. She moved in on April 1, 2020 — and things got off to a rocky start. The apartment below Avignone’s was undergoing some rehab to make it ready to rent. Avignone complained to defendants that the volume of the noise and the time of day that it occurred (both at night and early morning) infringed upon her ability to enjoy peace and quiet in her apartment. At this point, the parties’ accounts diverge. Defendants testified that they made every effort to accommodate Avignone’s concern. In particular, they promised her that only quiet activity, like painting and taping, would occur during the morning and in the evening. Defendants say that they kept this promise. Avignone has a markedly different version of events. She testified that defendants bluntly told her that work would continue as normal and that if she did not like the noise she could leave. At this point, the court must resolve the conflicting testimony. It seems unlikely, in the court’s estimation, that defendants would issue an ultimatum to deal with a problem that arose so early in the lease and at a time when defendants were just establishing their new apartment building in the community. Indeed, the court credits defendants’ testimony that they altered his work schedule to accommodate Avignone. Moreover, given plaintiff’s description of the sound, it seems surprising that she failed to produce an audio recording of the disrupting racket. Thus, the court finds that defendants did not create noises that interfered with Avignone’s repose. Therefore, the court determines that defendants did not violate RPL §235b. A second problem arose concurrent with the noise issue — an abrasive odor. Avignone claimed that the odor forced her to stop using her bedroom. She complained to defendants who went to the apartment but detected no ill smell. Plaintiff retained Dr. Charles Menzie to assist her in ascertaining the cause of the odor. It should be noted that Dr. Menzie, at least according to his letter, never went to the apartment; rather, he based his analysis upon plaintiff’s description. Plaintiff reported to Dr. Menzie that the malodor was intermittent — sometimes overwhelming and other times non-existent. Dr. Menzie noted that the origins of the scent could be from the house or from a completely different location. He presented several alternative hypotheses, but without a formal investigation neither the source nor the cause of the odor could be established. Further, in July, plaintiff complained about the foul smell to the City Code Department. The responding code enforcement officer, though citing defendants for a water violation (further discussed below), made no independent finding of any odor. Since neither plaintiff’s own expert nor the code officer pinned the blame for the mysterious odor on the defendants, neither will the court. Since the cause of the irritating stink was not proven, neither was plaintiff’s case. She will receive no abatement of rent based upon her allegation that defendants failed to remediate an odor (cf Newkirk v. Scala, 90 AD.d 1257, 1258 [3d Dept. 2011]). Finally, the court will address the issues related to water pressure and temperature. In the beginning of July, Avignone informed defendants that in light of the noise and the odor that she would be withholding rent until her complaints were resolved. After this the water pressure in her apartment dropped, the water failed to get hot and her laundry machine would no longer fill up. So, Avignone contacted the Cohoes City Code Department and a code officer investigated the situation. The officer found that defendants had violated both the City Code and the New York State Code with respect to water temperature and pressure. The defendants were cited and ordered by the city code department to make repairs. In August, Avignone still had not paid rent. Coincidently, water problems cropped up again. She once more called the codes department. And once more, upon investigation, the code officer found that defendants were failing to comply with the requirements of water temperature and pressure. This time the code officer filed a criminal complaint charging defendants with providing their tenant with inadequate water supply including providing her with hot water.1 Pursuant to Real Property Law §235-b, every residential lease contains an implied warranty of habitability which is limited by its terms to three covenants: (1) that the premises are fit for human habitation, (2) that the premises are fit for the uses reasonably intended by the parties, and (3) that the occupants will not be subjected to conditions that are dangerous, hazardous or detrimental to their life, health or safety. Despite the expansive language of the statute, the Court of Appeals has specifically rejected the contention that the warranty was intended to make the landlord a guarantor of every amenity customarily rendered in the landlord-tenant relationship and held that the implied warranty protects only against conditions that materially affect the health and safety of tenants or deficiencies that “in the eyes of a reasonable person…deprive the tenant of those essential functions which a residence is expected to provide” (Solow v. Wellner, 86 NY2d 582, 588 [1995] [internal citations and quotations omitted; emphasis in the original]). Usually, RPL §235-b is raised as a defense to a non-payment proceeding — that is, the tenant claims that she is justified in not paying her rent due to the breach of warranty of habitability. Here, Avignone uses the statute as a sword rather than a shield. While the statute does not explicitly provide tenants with a private cause of action, RPL §235-b(1), makes its protections part of every lease. A breach of the law, therefore, is a breach of the lease and creates a cause of action in contract. Thus, the tenant is “entitled to assert their claim of breach of the warranty of habitability either by way of action or counterclaim, and their right to assert [of such a] claim was not dependent on [a] claim by landlord for rent arrears” (R & O Mgmt. Corp. v. Ahmad, 12 Misc 3d 85, 86 [App Term 2d Dept 2006]). When a landlord fails to provide hot water, they violate RPL §235-b (Pantalis v. Archer, 87 Misc 2d 205, 209 [Suffolk Dist Ct 1976]). The failure to provide adequate water pressure violates the statute as well. (H & R Bernstein v. Barrett, 101 Misc 2d 611 [Civil Ct., 1979]). This latter breach becomes more compelling during a pandemic. In this case, plaintiff’s lack of water pressure translated directly to the inability to wash her clothes. Keeping clothes clean helps prevent the transmission of the virus. Moreover, since the low water pressure forced plaintiff to go to a public laundromat to wash her clothing, she was subjected to an increased risk of getting sick. Thus, because defendants breached the implied warranty of habitability, they breached the lease and are liable to plaintiff. Having determined a breach of the lease, the court must determine damages — which tends to be uncomfortably amorphous in warranty of habitability cases. This is because such “damages are not susceptible to precise determination ” (Park W. Mgmt. Corp. v. Mitchell, 47 NY2d 316, 329 (1979]). The proper measure of damages is “ the difference between the [rent] and the value of the premises during the period of the breach” (id). Moreover, “[i]n ascertaining damages, the finder of fact must weigh the severity of the violation and the 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). Based upon the totality of the credible evidence and implementing the calculus described by the Court of Appeals, the court awards Avignone $300 for the month of July and $600 for the month of August as damages under RPL §235-b. Up to this point in the case, the court has dealt with the mundane — everyday courts deal with cases involving living conditions, rent and the warranty of habitability. Plaintiff, however, invokes RPAPL §768 and asks the court to award her a civil penalty for the violation. RPAPL §768 is of recent vintage, enacted by the legislature in 2019 as part of the Housing Stability and Tenant Protection Act (L 2019, Ch 36). A violation of RPAPL §768 subjects the violator to both civil and criminal penalties. RPAPL §768 provides in pertinent part; “It shall be unlawful for any person to attempt to evict an occupant of a dwelling unit by: engaging in a course of conduct which interferes with or is intended to interfere with or disturb the comfort, repose, peace or quiet of such occupant to induce the occupant to vacate the dwelling unit [by] the interruption or discontinuance of essential services” (RPAP §786[1][a] & [a][ii]). Such person shall also be subject to a civil penalty of not less than one thousand nor more than ten thousand dollars for each violation. Each such violation shall be a separate and distinct offense (RPAPL §768[2][b]). Two statutory questions must be addressed. The initial question is whether defendants violated RPAPL §768. Here, in the court’s opinion, is what happened. The defendants were frustrated by the tenant’s phantom complaints along with her nonpayment of rent. Initially, they sought to resolve this grievance properly — defendants filed a non-payment proceeding to evict Avignone (RPAPL §711[2]). However, pursuant to a flood of ever changing Executive and Administrative Orders that constantly altered eviction proceedings, the pro se defendants were not able to adjudicate their case.2 Without a prompt judicial remedy, defendants became understandably frustrated. So, they resorted to tactics that made residing in the apartment unpleasurable for Avignone in an effort to get her to leave.3 Thus, based upon the evidence and the reasonable inferences drawn therefrom, the court concludes that defendants intended to interfere with plaintiff’s enjoyment of her apartment to induce her to vacate it by tampering with the water, an essential service in violation of RPAPL §768[1][a]. The next statutory question, and the one upon which this case hinges, is whether a court, in a private civil action, may award the plaintiff a civil penalty under RPAPL §768[2][b]. Normally, “[t]he words of the statute and what those words convey, in context, is what the statute means” (Morning Light Realty, LLC v. Brown, 62 Misc 3d 274, 280 [Cohoes City Ct, 2018]). But here, the statutory language is oddly silent. It is not just that the legislature never mentioned whether RPAPL §768′s civil penalty may be enforced via a private lawsuit; rather, it failed to identify any entity which has civil enforcement power. In the face of this silence, the court must take a cautious approach neither to be too restrictive nor too liberal in its statutory interpretation. To do this, the court will look at three factors: the law involving implied private causes of action, the purpose of a statutory penalty and the separation of powers doctrine. Initially, to unravel the issue, it is helpful to reason by analogy from the law regarding the creation of a private cause of action. To start with, “[a] statute’s mere prohibition of a certain act does not imply creation of a private right of action for its violation” (Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts §51, p 313 [1st ed 2012]). A private cause of action exists only if the legislature intended to create one. And “courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute” (Alexander v. Sandoval, 532 US 275, 286-87 [2001]). Considering the statutory silence, the court doubts that RPAPL §768 creates a private cause of action. Moreover, where a statute creates criminal liability, as RPAPL §768[2][a] does, then, generally, no private cause of action may be implied (Sheehy v. Big Flats Cmty. Day, Inc., 73 NY2d 629, 634-35 [1989]). Thus, if the legislature did not create a private cause of action under RPAPL §768, it seems unlikely that the legislature intended to allow a private party to enforce a civil penalty provision. Additionally, a private statutory cause of action is designed to compensate while a statutory penalty is designed to punish. Imposition of a penalty is a powerful tool. A court should hesitate before allowing it to be wielded by those who are focused upon their private interests and not the public’s. Indeed, “[t]he availability of civil penalties [which are] vastly disproportionate to the individual injury [as is the case here] gives citizen plaintiffs massive bargaining power,” by allowing public fines to be leveraged for their private interest (Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 US 167, 209-10 [2000] [Thomas, J dissenting]). Without an express statutory transfer of governmental power from democratically accountable officials to private parties, the court should not infer one. Finally, and perhaps most importantly, even if the court were to construe RPAPL §768 to mean that the legislature delegated to a private party the power to punish a landlord, such a construction would raise a separation of powers issue. This is because no function cuts more to the heart of the executive’s constitutional power than its discretion to seek the imposition of penalties. Thus, while the legislature has the power to define a penalty and the court possesses the judgment over the severity of the penalty, neither branch may compel the executive to enforce a penalty nor delegate that authority to another (Soares v. Carter, 25 NY3d 1011, 1013 (2015); see also Morrison v. Olson, 487 US 654, 708-11 [1988] [Scalia, J dissenting]). Simply put, the legislature may not transfer enforcement power belonging to executive to a private party. Therefore, the court should interpret the statute to avoid rendering it unconstitutional (National Federation of Independent Business v. Sebelius, 567 US 519, 562 [2012]). In light of the law governing implied private causes of action, the purpose a civil penalty and constitutional concerns, the court holds that while defendants violated RPAPL §768, plaintiff may not, in the context of a private civil action, seek to enforce the statute’s civil penalty provision under RPAPL §768[2][b]. This brings the case to defendants counterclaimed for unpaid rent. Plaintiff has admitted not paying rent from July through November. Five months’ rent at $975 a month amounts to $4,875. The amount of rent owed is reduced by the award to plaintiff for the breach of the warranty of habitability of $900. Therefore, the courts awards judgment to defendants on their counterclaim in the amount of $3,975. Therefore, it is ORDERED that judgement is entered in favor of Defendants Stephen and Jacqueline Valigorski in the amount of $3,975. The foregoing constitutes the Decision and Order of the Court. Dated: December 12, 2020
