DECISION, ORDER AND JUDGMENT This non-payment summary proceeding was commenced by Konstantin Stefanis (Petitioner) seeking to recover possession of 401 St. Barnabas Place, Apt 3S, Yonkers, New York 10701(the subject premises) on the grounds that Respondents, Tawanda Cavicchio and Yyette Williams, failed to pay past due rent. The petition, dated August 6, 2021, alleged that the parties entered an oral month to month tenancy in which the Respondents agreed, to pay rent in the sum of $1,9.00.00 per month. The petition sought $5,700.00 for arrears in use and occupancy, from June 2021 to August 2021. On or about October 13, 2021 Respondents filed an answer with the assistance of Legal Services of the Hudson Valley. The answer asserted defenses of incorrect rent, that the amount included non-rent charges, and alleged the action was a retaliatory eviction. The answer included an affirmative defense and counterclaim based upon an. alleged breach of the warranty of habitability. Respondents alleged that the subject premises did hot have gas service or a working stove since July 2, 2020 and that severe water was leaking into the subject premises from on or about September 1, 2021. Following several conferences and adjournments the matter appeared on the Court’s calendar for trial on January 21, 2022. The parties appeared with their attorneys. Trial Petitioner, Konstantin Stefanis testified that he and Respondents entered into an oral month to month agreement to rent the subject premises $1,900.00 per month. He alleged that in approximately July, 2021, the Respondents stopped paying rent. He testified that on or about July 9, 2 021 he sent Respondents a predicate notice via certified, registered mail. Thereafter Petitioner mailed, via certified and registered mail, a fourteen-day notice demanding Respondents pay the sum of $3,800.00 (representing the monthly rent of $1,900.00 per month for the months of June and July 2021) within fourteen days from the date of service. The COVID Declaration of Hardship was annexed. Petitioner testified that at the time of the trial the Respondents owed $11,400.00. Respondent, Tawanda Cavicchio testified on her own behalf. She stated she moved into the subject premises July 2, 2020 with co-Respondent Yvette Williams. She stated she contacted Con Edison and was allegedly advised that gas service to the subject premises was discontinued sometime in 2017 and that a licensed plumber was required to conduct an inspection prior to any restoration of service. Ms. Cavicchio acknowledged that Petitioner contacted a plumber but alleged that the plumber refused to do the work as Petitioner refused to pay the estimate. Ms. Cavicchio stated on or about July 31, 2020, arranged for her friend to inspect the gas line. However, he was not licensed in Westchester County and as such, the gas service remained off. Ms. Cavicchio alleged that she notified Petitioner several times per month regarding the non-working stove and that his response was simply “pay or get out”. She stated she paid for approximately one year before she described becoming “fed up” and ceased rental payments. Ms. Cavicchio testified that because of Petitioner’s failure to restore the gas service, she spent hundreds of dollars oh food each week. Further, Ms. Cavicchio testified that there were water leaks and water damage in the subject premises, particularly in her bedroom and kitchen ceilings (Resp. Exhibits A-E). Through counsel she submitted video recordings of water leaking in the bathroom (Resp F), the bedroom (Resp. Exhibit G) and brown water running in the toilet and the bathtub (Resp. Exhibit H). She testified that the photographs and videos were taken on August 23, 2021, September 1, 2021, and September 2, 2021. She asserted that despite advising Petitioner of the conditions, his only response was to direct her to pay the rent. She contended that Petitioner never sent anyone to repair the leaks. In closing, counsel for Petitioner argued the premises were habitable while acknowledging that there was in fact, an issue with the gas stove. Petitioner contends he made efforts to correct the gas service issues and vehemently denied that it existed for the first ten months of Respondents’ tenancy. Respondents’ counsel requested a one third abatement of rent for the entire tenancy (June 2020 through December 1, 2021) due to the defective stove, water damage and leaks in the subject premises. The Court reserved decision. Discussion Respondents asserted retaliatory eviction defense in their answer. RPL §223-b(1)(b) prohibits a landlord from commencing an action in retaliation for actions taken in good faith to secure or enforce a tenant’s rights under RPL §235-b. If a court that finds that a landlord commenced a summary proceeding in retaliation for a tenant having taken any protected action, then a “judgment shall be entered for the tenant.” RPL §223-b [4]. The Respondents bear the burden of establishing a defense of retaliatory eviction. See, 339-347 E. 12th St. LLC v. Ling, 35 Misc.3d 30 (App Term, 1st Dept, 2012}. To succeed, the Respondents were required to establish that (1) they exercised a protected right in her conduct; (2) they had a serious, reasonable, bona fide grievance with a foundation in fact; (3) they did not create the condition; (4) the grievance was present at the time Petitioner commenced the proceeding; and (5) Petitioner’s overriding reason to evict Respondents was to retaliate for exercising their constitutional rights. Toms Point Apts. v. Goudzward, 72 Misc.2d 629 (Dist. Ct. Nassau Co. 1972). The Respondents failed to meet this burden and demonstrate a basis for this defense. Respondents, in their answer, also alleged the amount demanded was incorrect and included non-rent charges. As Respondents failed to offer any evidence or testimony supporting these defenses, the Court concludes the amount of the rent was $1,900.00 per month. The Court then turns to Respondents claims regarding the alleged breach of the warranty of habitability. In every lease there is an implied warranty that the premises “are fit for human habitation and for the uses reasonably intended by the parties.” RPL §235-b. It mandates that “[t]he occupants of such premises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety.” Id. The purpose of the warranty of habitability is to compensate tenants for living in an uninhabitable residence. See, Halkedis v. Two E. End Ave. Apt Corp., 161 A.D.2d 281 (1st Dept., 1990); Alder v. Ogden CAP Props, LLC, 42 Misc.3d 613 (N.Y. Sup. Ct., 2013). Respondents alleged they continuously resided in the subject premises during the entire period from July 20, 2020 through December 1, 2021. Respondents contend they were without a gas stove for the duration of this tenancy and do not deny that they ceased paying rent on or about July 2021 through November 2021. Damages for a breach of the warranty of habitability are calculated as “the difference between the fair market value of the premise 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, 47 N.Y. 2d 316, 327 (1979). Any such award may be in a plenary action or a reduction of the contracted-for rent as a setoff in a summary nonpayment proceeding for which the respondent counterclaims, as is the case here. The Court may consider the period of the breach, the severity of the defects, the impact on the tenant’s living and the efforts made by the landlord to remedy same. Id. The Court does not find Respondent’s testimony regarding the duration of her lack of gas to be credible. Respondent’s testimony that she spent hundreds of dollars per month for over one year without a stove was unsupported and Respondent’s testimony lacked sufficient detail regarding the extensiveness of the breach and the impact it had on her health, safety, or welfare. These deficiencies do not preclude Petitioner’s liability for breach of the warranty of habitability, however, the amount of damages or the abatement awarded herein is impacted. Due to the incomplete testimony and lack of evidence in support, the Court is constrained to find that Respondent has failed to provide sufficient facts establishing the dates, duration, and intensity of the conditions at the property to enable the Court to quantify an abatement for leaks which allegedly existed for some time in the subject premises. 195-24 LLC v. Titus, 52 Misc. 3d 134 [A] (App. Term., 2nd Dept., 2nd, 11th & 13th Dist., 2016). However, Respondents did submit credible evidence in the form of photographs and video which Petitioner did not rebut. Respondents further alleged that the conditions were never rectified. Thus, the Court concludes that same existed from August 23, 2021 through the remainder of Respondents tenancy, November 30, 2021. The Respondents are entitled to an abatement for the time they were living in an apartment which lacked essential services. The Court calculates an appropriate abatement to be Twenty (20 percent) Percent for the Seventeen (17) months that the subject premises was without a working stove and Five (5 percent) Percent for the water damage and leaks in the premises for the 99 days (August 23, 2021 through November 30, 2021) that the condition existed. Finally, there is no dispute that Respondents failed to pay rent for the months of June 2021 through November 2021. Accordingly, the Petitioner is entitled to a judgment for this amount less an abatement to Respondents. Conclusion Petitioner is entitled to a money judgment against Respondents for the sum of Nine Thousand Five Hundred ($9,500) Dollars which is comprised of five months of rent from July 2021 through November 2021 at a rate of $1,900.00 per month. This amount is to be reduced by an abatement of twenty (20 percent) percent for the seventeen (17) months which the Respondents did not have a working stove. The Court calculates this abatement to be $6,460 ($1,900 per month x 17 months = $32,300 x.20 = $6,460) and further less Three Hundred Thirteen Dollars and Forty-Eight ($313.48) Cents representing Five (5 percent) Percent of the rent for the ninety nine (99) days water damage and leaks existed in the subject premises ($1,900.00 / 30 = $63.33 [daily rate] $63.33 x 99 days = $6,269.67 x.05 percent) = $313.40) Accordingly, judgment in the sum of $2,726.60 is hereby awarded to Petitioner ($9,500-$6, 460-$313.40=$2, 726.60). Submit judgment. The foregoing constitutes the Decision and Order of the Court. Dated: March 10, 2022
