Plaintiff commenced this small claims action seeking to recover $5,000.00 for loss of personal property. A hearing was held on July 23, 2021. At the hearing, Plaintiff Aldridge testified that she rented two self storage units from the defendant on June 24, 2019 at a total cost of $332.00 per month and also paid a monthly charge for a Tenant Protection Plan. When she went to the unit three months after renting, she saw rat feces in the unit. She stated that she informed an employee at the facility and that he told her that he would tell management about the infestation. On September 29, 2020, plaintiff went back to the unit and observed more rat droppings. She stated that she decided to remove her belongings. As she was sifting through her belongings she observed that the rats had eaten through her clothes and urinated on her mattress and sheets. She stated that she returned to the unit on October 1, 2020 and was denied access to the unit. Plaintiff states that all of her items were damaged. She submitted several photographs evidencing her findings. Suzette Anderson testified for the defendant. She testified that she was the site manager at the self storage facility. She stated that on June 25, 2020, the defendant complained about rodent droppings and maintains that after they received her complaint, another employee tried to contact plaintiff to ascertain if she wanted to move to another self storage unit. Ms. Anderson testified that they were not able to reach plaintiff because her phone was disconnected. In turn, the storage facility had an exterminator set traps outside of the plaintiff’s unit. Ms. Anderson testified that the exterminator increased the frequency of his visits from one time per month to one time per week. Defendant submitted numerous extermination service inspection reports from Assured Environments. Ms. Anderson testified that the plaintiff vacated the unit on September 29, 2020. She maintains that the unit was left open and that she did a walk through. As she was cleaning out the unit, she took photographs and observed that food had been stored in the unit in violation of the occupancy agreement. Ms. Anderson testified that plaintiff never claimed her property. She further stated that plaintiff paid $24 per month for a Tenant Protection Plan that covers up to $2, 500.00 in property damage for each unit. The occupancy agreement submitted by the defendant provides that “Occupant” Myrna Aldridge leased storage space 4066 on June 25, 2019. She also executed an “Addendum to Self-Storage Occupancy Agreement”, wherein she paid an additional $10 per month for a Storage Protection covering up to $2500 in property damage in the unit. Defendant argues that it should not be held liable for the damages to plaintiff’s property because her property damage is covered by the storage protection plan and further, she stored food in the unit in violation of the occupancy agreement. Paragraph 6b of the contract provides in pertinent part: “6b. No Unlawful or Prohibited Use. Occupant will use the Storage Unit only for storage. Occupant will not store any animals, perishable goods or dangerous material…in the Storage Unit or any other place on the Property.” Paragraph 7 of the agreement requires the occupant to obtain insurance. 7. INSURANCE: ALL PERSONAL PROPERTY STORED BY OCCUPANT AT OCCUPANTS SOLE RISK. INSURANCE IS OCCUPANT’S SOLE RESPONSIBILITY. OCCUPANT UNDERSTANDS THAT OWNER WILL NOT INSURE OCCUPANT’S PERSONAL PROPERTY. OCCUPANT IS OBLIGATED UNDER THE TERMS OF THIS AGREEMENT TO INSURE HIS/HER OWN GOODS AGAINST ALL PERILS OF WHATEVER NATURE INCLUDING BUT NOT LIMITED TO LOSS BY FIRE, THEFT, OR ANY OTHER TYPE OF CASUALTY. OCCUPANT’S AGREEMENT TO OBTAIN INSURANCE IS A MATERIAL CONDITION TO THIS AGREEMENT. To the extent Occupant’s insurance lapses or Occupant does not obtain insurance coverage for the full value of Occupant’s personal property stored in or on the Premises, Occupant agrees Occupant will personally assume all risk of loss. Owner…will not be responsible for, and Occupant hereby releases Owner and Owner’s Agents from any responsibility for any loss, liability, claim, expense or damage to personal property…that could have been insured against (including, without limitation, any Loss arising from the active or passive acts, omission or negligence of Owner or Owner’s Agents) (the Released Claims). Occupant waives any right to recover against Owner or Owner’s Agents for the Released Claims. Occupant expressly agrees that the carrier of any insurance obtained by Occupant shall not be subrogated to any claim of Occupant against Owner or Owner’s Agents. The provisions of this paragraph will not limit the rights of Owner and Owner’s Agents under paragraph 8 Limitation of Owner’s Liability. Paragraph 8 of the agreement seeks to limit the Owner’s liability. 8. Limitation of Owner’s Liability. Owner and Owner’s agents…will have no responsibility to Occupant or any other person for any liability, expense, damage to their personal property or injury to them arising out of Owner’s active or passive acts, omissions, negligence or conversion unless Owner intentionally and/or in bad faith cause the liability, expense, damage or injury. Occupant agrees that owner and owner’s agents’ total responsibility for any liability, expense, personal property damage and personal injury will not exceed five thousand dollars ($5,000). The Occupant hereby waives any claim for sentimental value or emotional distress, including any such claim, losses or damages arising out of the loss or damage to any property stored in the Storage Unit or on the Property. However, the Addendum to the Self-Storage Occupancy Agreement provides in pertinent part: 1. In consideration of the payment as initialed above, which is in addition to the monthly Occupancy Charge, Owner shall not require the release of liability described in paragraph 8 of the Agreement.…Instead, pursuant to this Protection Agreement, the Owner agrees to be liable to you, the Occupant, for loss or damage that occurs as a result of the Owner’s negligence or as a result of acts or omissions for which the Owner is liable under the law including but not limited to vicarious liability, intentional tort, strict liability or breach of common law or statutory duty. For example, the Owner shall be liable to Occupant for damage or loss caused by fire, smoke, theft, water damage or vandalism that results from the negligent operations of the facility operator…. (emphasis added). 5. The Owner Will Not Pay for Damage to the Stored Property Caused by Any of the Following:…rodents or vermin. “Pursuant to General Obligations Law §5-321, a lease provision which purports to exempt a lessor from liability for its own acts of negligence is void and unenforceable” (Ben Lee Distribs., Inc. v. Halstead Harrison Partnership, 72 AD3d 715 [2d Dept. 2010] (citations omitted). Under the law: Every covenant, agreement or understanding in or in connection with or collateral to any lease of real property exempting the lessor from liability for damages for injuries to person or property caused by or resulting from the negligence of the lessor, his agents, servants or employees, in the operation or maintenance of the demised premises or the real property containing the demised premises shall be deemed to be void as against public policy and wholly unenforceable (NY CLS Gen Oblig §5-321). In A to Z Applique Die Cutting v. 319 McKibbin St. Corp., 232 AD2d 512 [2d Dept. 1996], the commercial tenants commenced an action seeking to recover damages for injury to property in their business caused by water damage from the sprinkler system. The landlord claimed exemption from liability and “sought to avoid the applicability of General Obligations Law §5-321 by inserting clauses into the lease requiring the tenant to maintain insurance and providing for mutual waivers of subrogation”. The Second Department held that the lease provision was unenforceble and void under General Obligations Law §5-321. The court stated: As this Court held in Radius Ltd. v. Newhouse, 213 AD2d 614, 615, a lease which requires the tenant to hold the landlord harmless from liability and ‘places the sole obligation to obtain insurance and pay premiums upon the tenant’ violates General Obligations Law §5-321 and is unenforceable to the extent that it attempts to relieve the landlord of responsibility for damages to the tenant caused by the landlord’s own negligence. The defendant cannot circumvent General Obligations Law §5-321 merely by inserting into the lease a requirement that the tenant obtain insurance (see Graphic Arts Supply v. Raynor, 91 AD2d 827). (See Ben Lee Distribs., Inc. v. Halstead Harrison Partnership, 72 AD3d 715 (lease provision holding landlord harmless for its own acts of negligence void under GOL §5-321). In PR Jericho Storage LLC v. Saks Plumbing and Heating Corp., 2020 NY Misc. LEXIS 4284; 2020 NY Slip Op 32627 (U) [Sup Ct. Kings Co. 2020], the court found that the owner of a self-storage unit could not insulate itself from liability from personal injuries sustained by the occupant. The court held that General Obligations Law §5-321 applies to any lease of real property, including self-storage units, and thus an indemnification clause that exempts the storage unit owner from its own negligence is void against public policy and unenforceable (See Anable v. Public Storage Prop. XIV, Inc., 2012 NY Misc LEXIS 2539; 2012 NY Slip Op. 3148 (U) [Sup. Ct. New York Co. 2012]. Accordingly, this Court finds that Paragraph 5 of the Addendum, which purports to hold the defendant, defendant’s agents, employees and Manager harmless for injury to plaintiffs’ property is unenforceable pursuant to General Obligations Law §5-321 because it attempts to completely absolve the defendant of its responsibility for damages caused by rodents or vermin, even where the damage to property could have occurred as a result of its own active or passive acts, omissions or negligence. Now the Court must determine if the defendant was negligent in its operation maintenance of the premises, such that rodents infested the self-storage unit. In order to prevail on a negligence claim, “a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom” (Pasternack v. Laboratory Corp. of Am. Holdings, 27 NY3d 817, 825, 37 N.Y.S.3d 750, 59 N.E.3d 485 [2016], rearg denied 28 NY3d 956, 38 N.Y.S.3d 525, 60 N.E.3d 421 [2016] [internal quotations marks and citations omitted]). The nature and extent of the duty are matters of law to be determined by the court (Kimmel v. Shaefer, 89 NY2d 257, 263 [1996]). “A landowner is under a non-delegable duty to maintain its property in a reasonably safe condition under existing circumstances…This common law duty is tempered by a requirement that a plaintiff seeking recovery must establish that the landlord created or had actual or constructive notice of the hazardous condition which precipitated the injury…To constitute constructive notice, a defect must be visible and apparent, and it must have existed for a sufficient length of time prior to the accident for the owner to have discovered the defect and remedied it…A party injured by the owner’s failure to fulfill its duty may recover from the owner…(Grogan v. Gamber Corp., 19 Misc 3d 798 [Sup Ct New York Co. 2008]) (hotel owes guests duty of providing them with accommodations in reasonably safe condition free from bedbug infestation). Here the evidence presented established that the defendant, as operator and owner of the storage unit facility had a duty to maintain its property in a clean and safe condition. However, the plaintiff failed to meet her burden of demonstrating that the defendant breached its duty. The credible evidence at trial established that once defendant learned about the infestation, it took corrective action. They attempted to contact the plaintiff to move her to another unit, however, they were not able to reach her because her phone wad disconnected. Also, defendant increased the frequency of the extermination services and placed traps outside of her unit. Moreover, it was established that the plaintiff stored food in the unit in violation of the agreement, likely a contributing factor to attracting the rodents in this unit. Accordingly, plaintiff failed to establish that the defendant was negligent in the maintenance and operation of the facility such that rodents infested her unit and caused property damage. Case dismissed. The above complies with the Court’s statutory charge to do substantial justice between the parties. The above constitutes the decision and order of the Court. Dated: September 24, 2021
