On October 20, 2021, a hearing and trial were held in reference to this summary proceeding. Petitioner was represented by Jacob Tuckfelt, Esq. of Blustein, Shapiro, Rich & Barone, LLP who called Jason Hartman and Joyce Foulkes as witnesses. Respondent appeared pro se, testified on her own behalf and called Matthew Wright as her witness. BACKGROUND Petitioner owns a two-family residence located at 51 Neelytown Road in the Town of Hamptonburgh. Respondent and her two children have resided in the second-floor apartment for over four years. Joyce Foulkes has resided in the first-floor apartment for about twenty years. Petitioner commenced a proceeding (Docket # 21070005) alleging non-payment of rent and thereafter filed an additional petition (Docket# 20110005) alleging that respondent engaged in unreasonable behavior that substantially infringes on the use and enjoyment of other tenants or caused a substantial safety hazard to others. Respondent filed a Declaration of COVID Hardship. The matter proceeded to a combined hearing and trial to determine the validity of the COVID Hardship and the merits of the nuisance claim and the underlying claim for possession. COVID HARDSHIP Upon the commencing of the hearing, petitioner’s attorney withdrew his motion for a COVID hardship hearing. As such, the court finds respondent’s COVID hardship claim to be valid. NUISANCE The court credits the testimony of petitioner’s principal, Jason Hartman, which is supported by respondent’s testimony, that there are a number of bats occupying the attic area above respondent’s apartment. The only access to the attic area is through respondent’s apartment. Respondent changed the locks on her apartment doors and, on a number of occasions, unreasonably refused to permit petitioner access to both her apartment and the attic to correct the bat problem in the attic.1 The bat problem remains uncorrected. In addition, the court credits the testimony of petitioner, also supported by the testimony of respondent, that there is water leaking from the roof into respondent’s apartment causing wet ceilings. Respondent testified that mold is present as a result of the leaks. Moreover, the leaks have caused water to enter the first floor apartment occupied by Joyce Foulkes and the basement area near the electrical box serving the entire building. The leak and mold and damage to the ceilings remain uncorrected. On several occasions, petitioner asked respondent for access into her apartment to remove the bats, to repair the wet ceilings and to fix the leaking roof. He offered to pay the cost for respondent and her children to temporarily move to a hotel while he corrects the bat and water/mold problems. Respondent unreasonably refused petitioner’s offer, causing the problems to remain uncorrected. The bat, water and mold problems endanger not only the health and safety of respondent and her children, but also the first-floor tenant and, if untreated and/or uncorrected, will likely threaten the structural integrity of the building, In addition to respondent’s unjustified refusal to permit petitioner to fix the bat, water and mold problem, respondent has been discarding trash, glass, food and cigarette butts on the ground at the exterior of the premises which substantially infringes on the use and enjoyment of the premises by the first-floor tenant, Joyce Foulkes, who regularly uses the littered-upon area. Based on the foregoing, the court finds that petitioner has established that respondent engaged in unreasonable behavior that substantially infringes on the use and enjoyment by other tenants and has caused a substantial safety hazard to others. Upon the aforesaid finding, the court has considered and makes the following findings relating to the merits of petitioner’s claim for possession based on the non-payment of rent. GROUNDS FOR PETITIONER’S CLAIM FOR POSSESSION Petitioner claims, and respondent does not contest, that the following rent remains unpaid: $350.00 for the month of November, 2020 and $1,500.00 for the months of December, 2020 through and including October, 2021. The total amount owed is $16,850.00. Respondent does not deny that she has not paid the rent, but alleges that there are problems in the apartment and that she has a financial hardship to pay. For the reasons previously mentioned, the defendant’s financial hardship is not a defense because she has engaged in unreasonable behavior that substantially infringes on the use and enjoyment of other tenants and caused a substantial safety hazard to others. Any claim that respondent has for a breach of the warranty of habitability is without merit since she substantially contributed to the condition of the premises by unreasonably refusing petitioner access to the apartment to correct the problems about which she now complains. Based on the foregoing, it is hereby ordered that petitioner is entitled to judgment against respondent for possession of the premises and a money judgment in the amount of $16,850.00 plus attorneys fees as permitted in the lease and, as such, is entitled to the issuance of a judgment and warrant of eviction. In the interest of justice, the execution of the warrant of eviction is stayed through November 30, 2021. Judgment and warrant of eviction may be submitted by petitioner on notice to respondent. The aforesaid constitutes the Decision and Order of the Court Dated: October 25, 2021
