The following papers numbered 1 to 9 were read and considered after trial. Papers Numbered Notice of petition, and Petition 1 Exhibits 3-9 Post-Trial Memorandum 2 DECISION AND ORDER Petitioner-Landlord commenced this action by Notice of Petition and Petition dated May 24, 2021, to Recover Possession of Real Property due to Non-Payment of Rent for apartment 6G located at 5 0 Riverdale Avenue Yonkers, New York. The Petition alleges inter alia Respondent-Tenant owes rent as follows: January 2021 — $691.10; February 2021 — $691.10; March 2021 — $691.10; April 2021 — $691.10; May 2021 — $691.10, totaling $3,481.33. The petition was amended on September 22, 2021, in open court to reflect the rent owed as $5,554.63. Thereafter, the petition was amended on March 16, 2022, to reflect the rent owed as $9.703.04.1 The Respondent-Tenant did not submit an Answer in writing. However, the Tenant did appear by counsel and requested a trial. A Bench trial was held on February 25, 2022, and March 16, 2022. At the beginning of the trial Respondent-Tenant sought to assert the affirmative defense of breach of quiet enjoyment of the subject premises. The Petitioner-Landlord did not object to the affirmative defense. Testimony and Findings of Fact The parties entered into a lease agreement, and the Respondent moved into the subject apartment located at 50 Riverdale Avenue, Apartment 6G, Yonkers, New York 10701 on or about October 1998. The Respondent described the living conditions in the building as “fine” from 1998-2019. It is undisputed that the Respondent timely and consistently paid her rent for the subject apartment until approximately January 2 021. (Pet. Ex. 1). The Court notes that while the Respondent ceased paying rent, she continued to pay parking and electrical fees. (Id.). The Respondent testified that on or about October 2019, new tenants moved into unit 7G above her apartment. She stated that the tenants were banging and stomping on the floor and walls, drilling, and running up and down the length of the apartment. She stated that the tenants in 7G played their music at levels so loud her walls would vibrate. She stated that the tenants and their guests smoked marijuana both inside the unit and on the terrace which permeated her apartment through shared vents. She testified that these occurrences took place at all hours of the day and night and were in addition to dogs barking and scratching the floor and doors. The Respondent stated that she approached the tenants in unit 7G to no avail. She stated she began contacting the Petitioner, the Petitioner’s management office staff, security, and the Yonkers Police Department. The Respondent testified that despite numerous calls, letters, and e-mails to the management company of the living conditions, the Petitioner failed to take any steps to remedy the situation. (Resp. Exs. B-H). The Respondent stated that the disruptions affected her sleep, caused her undue stress and emotional distress. She stated that during the COVID-19 Pandemic/ she worked from home and was unable to work without disruption from the apartment above her. As a result, in January 2021, she ceased paying rent. On cross-examination the tenant acknowledged that the apartment above had been vacant since January 2022. Non-Payment Petition The Non-Payment Petition is granted subject to the following findings of fact and conclusions of law. 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 (Solow v. Wellner, 86 NY2d 582, 587-588 [1995]). To establish a breach, a tenant must demonstrate that there was an actual or constructive eviction. (See, 34-35th Corp v. 1-10 Indus. Assoc. LLC, 16 A.D.3d 579 [2ndDept, 2005] [commercial lease]; Grammer v. Turits, 271 A.D.2d 644 [2nd Dept 2000] [residential]; Board of Mgrs of the Saratoga Condominium v. Shuminer, 148 A.D.3d 609 [1st Dept 2017]). The court may find a tenant was constructively evicted if the wrongful acts by the landlord substantially and materially deprived the tenant of the beneficial use and enjoyment of the premises for the purposes for which they were leased (See, Barash v. Pennsylvania Term. Real Estate Corp., 26 N.Y.2d 77 [1970]; Davies, Turner & Co. v. Schatzen, 124 Misc. 170 [N.Y. Sup. Ct. 1924]). A tenant may assert as a defense to nonpayment the doctrine of partial constructive eviction from a portion of the premises; the portion must be unusable by the tenant even if there is no actual abandonment (See, Minjak v. Randolph, 140 A.D.2d 245 [1st Dept. 1988]). For an eviction to be actual or constructive, there must be a wrongful act by the landlord which deprives the tenant of the beneficial enjoyment or actual possession of the subject premises (See, Barash, 26 N.Y.2d at 82). An actual eviction only occurs when the landlord wrongfully ousts the tenant from physical possession of the subject premises and there must be a physical exclusion or expulsion (Id.). A constructive eviction exists where, while there has been no physical exclusion or expulsion of the tenant, “the landlord’s wrongful acts substantially and materially deprive the tenant of the beneficial use and enjoyment of the premises” (Marchese v. Great Neck Terrance Assoc., L.P., 138 A.D.3d 698, 700 [2nd Dept. 2016], citing Barash, 26 N.Y.2d at 82; City of New York v. Pike Realty Corp., 247 N.Y. 245 [1928]). In an action to recover for breach of quiet enjoyment, a tenant must show an ouster, or of the eviction is constructive, an abandonment of the premises (Dave Herstein Co., Inc. v. Columbia Pictures Corp., 4 N.Y.2d 117 [1958]). “Excessive, continuous and intense noise may be harmful and render an apartment uninhabitable.” (Kalikow Props v. Mondny, 1978 N.Y. Misc. Lexis 2935 (1st Dept, 1978)). The Court finds that the Respondent has sufficiently met her burden for breach of quiet enjoyment. The Court credits the Respondent’s testimony that she was unable to sleep or work and had severe stress due to the loud noises and odors coming from the apartment above at all hours of the day and night. Additionally, the Court finds that the numerous emails and letters that the Respondent sent the Petitioner were sufficient to place the Petitioner on notice of the numerous disruptions emanating from the apartment above her unit (Resp. Exs. B-H). The Petitioner did not sufficiently rebut the Respondent’s testimony to demonstrate that the Respondent’s claim for breach of quiet enjoyment was not met. The Petitioner failed to provide the Respondent with quiet enjoyment of the premises in that the Petitioner failed to move the offending tenant or remedy the untenable living conditions. It was established at trial that since the offending tenants moved out in January 2022 the noise has ceased. It was established at trial that since the offending tenants moved out in January 2022 the noise ceased. Accordingly, and for the foregoing reasons, the Court hereby finds that the monthly rental value of the Respondent’s apartment was diminished by 50 percent. Calculated at a rate of $691.10 per month for the months of January 2021 through October 2021 and $698.01 for the months of November and December 2021, the total amount of rent due for that period is $8,307.02. This sum is abated by the sum of $4,153.51. Petitioner amended the Petition to include the months of January and February 2022. There is no dispute that the upstairs tenants vacated by January 2022. Accordingly, rent for these months, in the sum of $1,396.02 is due. The Court hereby awards Petitioner a final judgment against the Respondent in the sum of $5,549.53 representing the balance of rent from January 2021 through February 2022 less the abatement. Dated and Entered: May 13, 2022
