DECISION/ORDER Yin Fa Realty Corp., the petitioner in this proceeding (“Petitioner”), commenced this summary proceeding against Rena Asastasi, the respondent in this proceeding (“Respondent”), seeking a money judgment and possession of 159 Essex Street, Apt. 3B, New York, New York (“the subject premises”) on the basis of nonpayment of rent. Respondent interposed an answer1 with an affirmative defense related to the Tenant Safe Harbor Act and with affirmative defenses and counterclaims sounding in retaliatory eviction and breach of warranty of habitability and a counterclaim for an order to correct and harassment and legal fees. The Court held a trial on October 7, 2022, October 12, 2022, and October 18, 2022 and adjourned the matter for post-trial submissions to November 9, 2022. Petitioner’s cause of action The petition, which verified on February 18, 2020, alleged that Respondent owed eight months of rent at a rate of $1,494.10 per month from June of 2019 through January of 2020, for a total amount of $11,952.80. The rent demand annexed to the petition sought payment of the same months for the same amount. Petitioner submitted into evidence a one-year lease between the parties commencing on October 1, 2019 with a rent of $1,494.10. Petitioner submitted into evidence a rent ledger. The ledger shows that Respondent did not pay rent in February of 2019, from October of 2019 through March of 2020, from June through December of 2020, and in June of 2021, and that Respondent otherwise paid the rent of $1,494.10 through June of 2021. Respondent submitted into evidence canceled checks showing that Respondent paid the rent of $1,494.10 two times in February of 2019, once in December of 2020, and once in June of 2021, none of which Petitioner’s ledger credited. Petitioner’s ledger also showed that the Emergency Rent Assistance Program (“ERAP”) paid Petitioner $11,952.80 in September of 2021. A cause of action for nonpayment of rent sounds in contract. Solow v. Wellner, 86 N.Y.2d 582, 589-90 (1995), Rutland Rd. Assoc., L.P. v. Grier, 2017 N.Y. Misc. LEXIS 1025 (App. Term 2nd, 11th, and 13th Dists. 2017), Fasal v. La Villa, 2 Misc.3d 137 (A) (App. Term 1st Dept. 2004). Accordingly, a landlord may only obtain a judgment against a tenant for nonpayment of rent for a time period in which there is a lease in effect. 6 West 20th Street Tenants Corp. v. Dezertoy, 75 Misc.3d 135(A)(App Term 1st Dept. 2022). The only lease that Petitioner submitted into evidence commenced on October 1, 2019. On that basis alone, Petitioner only proves an entitlement to a judgment for four months of rent on a petition seeking a judgment for rent arrears through January of 2020. Respondent’s proof that she made two payments of $1,494.10 that Petitioner had not credited prior to the petition further reduces the judgment Petitioner would be entitled to on the petition to two months of rent at $1,494.10. Respondent’s payment of $1,494.10 in April and May of 2020, shown on the rent ledger, demonstrates that the petition had been satisfied by that point. Respondent points out in her post-trial memorandum of law that Petitioner never moved to amend the petition, which the Court cannot do sua sponte. N.Y.C. Hous. Auth. v. Sinclair, 21 Misc.3d 133(A)(App. Term 2nd Dept, 2008), 106 Ave. B Owner LLC v. Hossain, 67 Misc.3d 1211(A)(Civ. Ct. N.Y. Co. 2020). Moreover, Respondent’s answer denied knowledge as to the truth of the allegation in the petition that Petitioner properly demanded payment of rent prior to the commencement of this proceeding, which places the burden on Petitioner to prove that element of its case. New York v. Streeter, 91 A.D. 206, 207 (1st Dept.), affirmed, 180 N.Y. 407 (1904). The rent demand sought payment of $11,952.80 as rent arrears through January of 2020. However, as demonstrated above, the record at trial only proves that Respondent owed two months of rent as of January of 2020 at $1,494.10 per month, a total of $3,588.20. This great of a discrepancy between the amount demanded and the amount proven owed renders the rent demand defective. IG Second Generation Partners, LP v. 166 Enterprises Corp. & Urban Outfitters, Inc., N.Y.L.J. Aug. 5, 2003 at 18:1 (App. Term 1st Dept.). Accordingly, it is ordered that the Court dismisses Petitioner’s cause of action for nonpayment of rent. Under the circumstances of this proceeding, this dismissal is without prejudice to another proceeding if arrears are still owed. See Kilduff v. Donna Oil Corp., 74 A.D.2d 562, 563 (2nd Dept. 1980). Respondent’s monetary counterclaims: gas, heat, hot water, mice Respondent testified that she has lived at the subject premises in the last twenty-eight years; that she has had no cooking gas for sixteen months, from June 7, 2021 through the date of her testimony; that she notified Petitioner over and over again by calling and texting; and that she called 311 over and over. Respondent submitted into evidence text messages she sent Petitioner on July 27, 2021 and October 29, 2021, complaining about a lack of gas, and a text from Alan Cheung (“the Property Manager”) that said that restoration of the gas was a long process. Respondent testified that she has not had heat from October of 2021 through the end of January 2022; that she had to stay with friends if there was a particularly cold weekend; that she sent a picture of her thermostat to Petitioner; that she used a space heater; that she had heat for a week and then it was turned down; that a lack of heat occurred in February of 2022; that she charged the space heater to Petitioner; and that she notified Petitioner of a lack of heat by text. Respondent submitted into evidence text messages that she sent the Property Manager complaining about a lack of heat on November 21, 2021, December 27, 2021, January 6, 2022, and February 7, 2022. Respondent testified that there was no hot water after 5 a.m.; that the hot water was on and off from September through December of 2021; and that she texted Petitioner about the hot water. Respondent submitted into evidence texts she sent the Property Manager complaint about a lack of hot water on November 21, 2021, January 6, 2022, April 16, 2022, and May 8, 2022. Respondent testified that there are mice; that she has not seen an exterminator for many months; that she saw a mouse on the kitchen counter recently; that she sees mouse droppings everywhere; and that she has to clean constantly. Respondent submitted into evidence a text message she sent the Property Manager referencing mice and a response from the Property Manager saying that the previous exterminator was not good. Respondent testified on cross-examination that she bought her own cooking plate and that she purchased an air fryer. Respondent testified on cross-examination that there used to be extermination but there was not anymore; that there used to be a sign about extermination; that she has not had problems with mice throughout 2022; that she found a dead one several months back; that she had previously bought mousetraps herself but she did not do that this time. The Property Manager testified on rebuttal that he cannot do anything because the building in which the subject premises is located (“the Building”) has no gas; that there was a backlog because of the pandemic; that someone installed another boiler for heat and hot water but they cannot do anything for cooking gas; that tenants are using electric countertops; and that the subject premises does not have an electric countertop. The Property Manager testified on cross-examination that there has not been gas since July of 2021; that he thought about getting a new general contractor but that would take longer because they would have to start all over; and that he is waiting for Con Edison. The measure of damages for breach of the warranty of habitability is the difference between 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, 329, cert. denied, 444 U.S. 992 (1979), Elkman v. Southgate Owners Corp., 233 A.D.2d 104, 105 (1st Dept. 1996). An indispensable element of a cause of action for breach of the warranty of habitability is evidence of a rental amount. Burgos v. Harry Realty LLC, 38 Misc.3d 147(A)(App. Term 1st Dept. 2013). As noted above, the only lease in evidence is a one-year lease commencing on October 1, 2019, so it would have expired before the onset of the lack of gas, the lack of heat, and the lack of hot water. Respondent also did not prove that she experienced a mouse infestation before September 30, 2020. In the absence of a baseline rent against which the Court could evaluate a breach of the warranty of habitability, it is ordered that the Court dismisses so much of Respondent’s counterclaim that sounds in a lack of gas, heat, or hot water, or a mouse infestation, without prejudice to another proceeding. Respondent’s monetary counterclaim: leak Respondent testified that there was a leak above her for several years starting in 2013; that she wrote letters to notify Petitioner of that; that she called Petitioner; that after six years of a leak problem that caused mold that she saw a lawyer and started deducting rent; that the problem was resolved in December of 2020; and that the leak was near the doorway but when it happened it made a big mess and she had to buckets there. Respondent submitted into evidence letters she wrote Petitioner about the leak dated May 26, 2014, July 21, 2014, January 8, 2015, February 1, 2015, March 9, 2015, May 1, 2017, June 8, 2017, and June of 2018. Respondent submitted into evidence “B” violations that the Department of Housing Preservation and Development of the City of New York (“HPD”) placed for leak damage on February 16, 2018, March 25, 2018.2 Respondent testified on cross-examination that Petitioner sent someone to paint and plaster before fixing the ceiling such that the condition recurred; that she observed something being done twice; that Petitioner did not offer to move her to a different apartment; that she asked to be moved; and that the Property Manager told her that she could not move. Jose Bermudez testified that he lives at the Building in apartment 4; that he knows Respondent; that he has been inside the subject premises; that in 2021 he checked out the roof; that they sent someone to fix it; that he fixed the closet wall because it was damaged, meaning that the wall fell; that he fixed it with plaster and cement; and that 2020 is when he went to the subject premises for the first time. Roberto Assi (“the Former Super”) testified that he lives in Pennsylvania; that he was the super at the Building for twenty-eight years; that he knows Respondent; that every time she called about problems in the subject premises he fixed them; that he fixed the skylight and the roof area; that Respondent called him directly; that he would speak to her when she called or he would call her back; that Respondent had a problem in the bathroom with the sink and the shower head and the toilet; that he fixed all of these things; that he replaced leaking pipes underneath the kitchen sink; that he had to call a contractor for work on a skylight; that he called a handyman, named Jose; that he was last in the subject premises two or three of years ago; that he retired three years ago when the pandemic started; and that sometimes “the landlord” called him to fix a condition. The Former Super testified on cross-examination that he did not deal with a leak in the ceiling and that he fixed a closet a couple of times. The Former Super testified on redirect examination that the first time he fixed the closet they did not know where the problem was coming from. The Property Manager testified that tenants are to call the super or Petitioner; that the policy is to send the super to fix the problem; that every now and then he was notified of repairs; that he would call the super; that sometimes he refers a job to a general contractor if the super cannot do the job; that usually Petitioner contacts a tenant after work is done; that usually when the super says that work was done he leaves it at that; that the super and the general contractor have made numerous repairs on the ceiling in the subject premises; that he instructed the contractor to seal the skylight because of the leaks; that the general contractor did, but Respondent asked for the skylight to be restored, so he directed the contractor to restore it; that Jose took care of the mold; that he called a mold company; that he was going to renovate the whole building; that tenants would have had to have moved out; that they said that they had no place to go; that he was going to temporarily relocate tenants to the other side of the Building; and that Respondent did not want to relocate. The Property Manager testified on cross-examination that he was informed of a leak in the ceiling in 2020; that he was notified before that but he sent the super to fix the problem; that 2020 was when he first knew that the roof had to be fixed; and that the super is not licensed to remediate mold. Ample proof in the record, including not only including Respondent’s testimony and HPD violations, but also the testimony of Petitioner’s own witnesses, shows that Respondent endured a leak in the ceiling of the subject premises for the entirety of the year for which the only lease in evidence was in effect, from October of 2019 through September of 2020. The letters in evidence and the HPD violations show that Petitioner had notice of the condition. Respondent is therefore entitled to a judgment on her counterclaim in the form of a rent abatement. Respondent’s aggregate rent liability from October of 2019 through September of 2020 was $17,929.20. The leak in the ceiling and the attendant damage it caused diminished the habitability of the subject by 17 percent. Seventeen percent of $17,929.20 is $3,047.96. Respondent’s counterclaim for an order to correct Respondent has demonstrated an entitlement to an order to correct outstanding violations. While the Court shall enter into an order to correct violations as such, the Court shall exercise its discretion to give Petitioner more than twenty-four hours to correct the gas condition given that the evidence does not show that the gas can be safely restored within twenty-four hours. Respondent’s counterclaim sounding in harassment The only basis upon which Respondent showed a potential entitlement to a judgment on her harassment counterclaim was for Petitioner’s repeated failure to correct violations. N.Y.C. Admin. Code §27-2004(a)(48)(b). The evidence that Petitioner submitted concerning repeated attempts to correct violations and difficulties getting gas back on rebut the presumption that Petitioner’s failure to correct violations manifested Petitioner’s intention to compel Respondent to surrender rights. Respondent’s counterclaim for attorney’s fees Each side in litigation in New York State bears its own litigation costs in the absence of a statute or an agreement to the contrary. Flemming v. Barnwell Nursing Home & Health Facilities, Inc., 15 N.Y.3d 375, 379 (2010). The lease in evidence has an attorneys’ fees clause. Such a clause entitles Respondent to a judgment in attorneys’ fees when Respondent is the prevailing party. RPL §234. When a tenant defeats a possessory cause of action in a nonpayment proceeding, a tenant is a prevailing party. Jocar Realty Co. v. Galas, 176 Misc.2d 534, 536 (Civ. Ct. N.Y. Co. 1998). Accordingly, Respondent has demonstrated an entitlement to a judgment in attorneys’ fees. Accordingly, it is ORDERED that the Court dismisses the petition, without prejudice to Petitioner’s cause of action in another proceeding if Respondent owes any rent arrears, and it is further ORDERED that the Court dismisses so much of Respondent’s counterclaims as seeks a rent abatement for gas, heat, hot water, or mice, without prejudice to Respondent’s cause of action in another proceeding, and it is further ORDERED that the Court awards Respondent a judgment in the amount of $3,047.96 on her counterclaim for a rent abatement with regard to the leak and the damage from the leak, and it is further ORDERED that the Court directs Petitioner to correct outstanding violations, as follows: “C” violations except for gas on the first day of access; “B” violations on or before December 28, 2022; and “A” violations and the “C” violation for gas on or before March 1, 2023, on access dates to be arranged by counsels for Petitioner and Respondent, and it is further ORDERED that on default of the order to correct, Respondent may move for appropriate relief, including but not limited to civil penalties or contempt, and it is further ORDERED that the Court dismisses Respondent’s counterclaim for harassment, and it is further ORDERED that the Court grants Respondent’s counterclaim for attorneys’ fees to the extent of calendaring the matter for a conference on a date to be arranged between the Court and counsel. This constitutes the decision and order of the Court. Dated: November 28, 2022
