Opinion
Index No. SC-000205-21/LF
02-03-2022
Karen L. Congdon, Plaintiff, v. Jessica Filippi, Defendants.
Karen L. Congdon, Pro se Plaintiff(s). Jessica Filippi, Pro Se Defendant(s).
Unpublished Opinion
Karen L. Congdon, Pro se Plaintiff(s).
Jessica Filippi, Pro Se Defendant(s).
Joshua P. Bannister, J.
Parties, Claim, Trial
Plaintiff filed the instant action on November 8, 2021, seeking $1,149.95 in damages from the Defendant. The matter proceeded to trial on.
Facts
The Plaintiff appeared and testified that the Defendant left without providing one month notice as required in the month-to-month lease agreement and now seeks the unpaid rent for September 2021 as well as damages for mold remediation, locks, smoke alarms, a broken refrigerator drawer, and other damages. The Plaintiff also testified that she expended money on various cleaning products following the Defendant's leaving the apartment.
The Plaintiff admitted the following exhibits:
• Plaintiff's Exhibit No.1: a binder including several pictures of the apartment as well as a receipt for the refrigerator drawer replacement.
• Plaintiff's Exhibit #2: notice to vacate letter from Defendant via personal delivery on 9/6/2021.
• Plaintiff's Exhibit #3: lease agreement.
The Plaintiff called City Codes Officer Philip Green to the stand. Plaintiff was unfamiliar with how to elicit testimony from a witness, so the Court started the inquiry about why Mr. Green was called as a witness. Mr. Green testified that he recognized the apartment in the pictures because he does "walk throughs" at the request of local landlords prior to a new tenant taking possession. Mr. Green testified that he normally drafts a report in triplicate, but didn't bring his own carbon copy report to court because it was illegible. Plaintiff did not seek to introduce her copy of the report. Mr. Green testified that he does not remember the apartment containing mold to the extent that it does in the pictures. Mr. Green also testified that the GFCI outlets by the kitchen sink were working and that he didn't notice smoke detectors missing. Mr. Green didn't test the outlets further away from the sink, doesn't remember if the smoke detectors had batteries, if there were leaks in the ceiling, and didn't see the steps in the back. Mr. Green testified that if a tenant had complained of bathroom mold like the kind seen in the pictures, he would tell the tenant it is the tenant's responsibility to remediate the mold.
The Defendant appeared and testified that she has known the Plaintiff for a long time and rented from the Plaintiff following Defendant's divorce. Defendant testified she mailed the notice to vacate letter on August 1, 2021, to the Plaintiff's address on Oregon Road, but didn't include the street number because she didn't know it. The Defendant testified that she has one lung, generally keeps the apartment clean, and that cleaning products as well as mold aggravate her respiratory condition. She testified that she did not take the smoke detectors and/or batteries out of the apartment, that some of the outlets in the kitchen didn't work, that the damage to the refrigerator door was an accident, that she put a slide lock on the basement door because it wouldn't shut properly, and that she complained to the Plaintiff several times about the mold in the bathroom and ceiling leaks which was detrimental to her respiratory health. The Defendant testified that she also expended about $200 on drain cleaners and other products but did not provide the Court with receipts for the same.
Defendant called Jeffrey Alford as a witness. Mr. Alford testified that he has known the Defendant for approximately 20 years, has known her to be a clean person, has been at the apartment in question between 10 and 20 times, described the apartment as "squeaky clean", was never in the bathroom, noticed an order that the Defendant said was mold, and doesn't know the Defendant as someone who would steal smoke detectors.
Defendant admitted the following exhibits:
• Defendant's Exhibit #A: various pictures of the apartment
• Defendant's Exhibit #B: text messages between Plaintiff & Defendant
• Defendant's Exhibit #C: more text messages between Plaintiff & Defendant
Discussion
The Court has reviewed and considered all the evidence presented in this case. The Court finds that the Defendant's mailing a notice to vacate letter to the Plaintiff without the street number was insufficient service of the notice because it was not reasonably calculated to reach the Plaintiff. By Defendant's own testimony the parties were friends, so it seems reasonable that the Defendant knew Plaintiff's address. Additionally, the extensive text messages between the parties make it clear that had the Defendant actually wanted to deliver the letter to the Plaintiff she could have either (1) inquired via text message as to the Plaintiff's house number or (2) taken a picture of the notice to vacate and sent it to Plaintiff via text message. Therefore, the Court determines that Defendant did not substantially comply with the terms of their lease and owes Plaintiff for the rent for September 2021.
However, this is not the end of the inquiry. There was conflicting testimony about the damage to the property and the proper allocation of responsibility for remediating that damage. It is unclear who is responsible for the removal and/or damage to the smoke alarms and door locks. In any event, even if the Court were to find for the Plaintiff on this issue, the Plaintiff bears the burden of proof and has not proven liability beyond a preponderance of the evidence on the issue of the smoke alarms and door locks. Even if Plaintiff did prove liability, the Court does not have a receipt for replacement smoke alarms or door locks. With respect to the refrigerator door, Defendant admits responsibility and Plaintiff has submitted a receipt for $64.95 which substantial justice dictates should be added to the Defendant's liability.
However, the Defendant raised issues about the condition of the property which puts the Warranty of Habitability into issue. New York tenants have protections under the Warranty of Habitability when they are "subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety" (Real Property Law § 235-b [1]). With respect to the mold, the Court is not bound by the Code Officer's determination of liability because "while certainly a factor in the measurement of the landlord's obligation, violation of a housing code or sanitary regulation is not the exclusive determinate of whether there has been a breach. Housing codes do not provide a complete delineation of the landlord's obligation, but rather serve as a starting point in that determination by establishing minimal standards that all housing must meet" (Park West Management Corp. v Mitchell, 47 N.Y.2d 316 [1979]). New York Courts have held that mold is a breach of the warranty of habitability (YNGH LLC v. Rogers, 30 Misc.3d 1216 (A) [Watertown City Court 2011]). Such issues as mold are grounds for a rent abatement (3660 Oxford Avenue Associates LLC v Ambrosini, 43 Misc.3d 1236(A) [Civ Ct, Bronx County 2014]). Tenants may also seek reimbursement from the landlord when the tenant expends funds remediating things such as mold remediation (Grinberg v. Eissenberg, 58 Misc.3d 54 [2nd Dept 2017]). However, landlords can avoid liability under warranty of habitability claims by prompt remediation of the issues. (NPR LLC v. KABB, 25 A.D.3d 674 [2nd Dept 2006]).
In this case, the Plaintiff properly acknowledged her responsibility to remediate the mold as appears in the text messages between the parties on August 2, 2021. See, Defendant's Exhibit C. For whatever reason, the mold problem continued until the Defendant vacated the premises as can be seen in the pictures admitted into evidence by both parties. The pictures speak for themselves and show a shower that is infested with mold. Both parties testified that they expended personal funds on cleaners and drain products. Neither party presented evidence of professional contractor bills.
Based on the foregoing, the Court finds that neither party will be reimbursed for their expenditures on cleaning and/or drain products because they are ordinary and necessary expenses that are normally made by people who own or maintain an apartment. This Court is concerned with the pervasive mold in the bathroom which still appears to be present in the pictures even after the Plaintiff cleaned the shower. This Court finds that even if the Defendant had done a better job cleaning, the mold was so pervasive that it required a contractor to at least remove and replace the caulk/sealant - an expense properly borne by the landlord, not the tenant (see Grinberg, 58 Misc.3d 54). Because the mold was not remediated prior to the tenant's vacating the premises, the Court finds that the mold was a breach of the warranty of habitability and will assess a 25% ($200) rent abatement in favor of the Defendant.
Based on the foregoing, the Court finds that substantial justice dictates that the Defendant owes the Plaintiff $664.95. This amount is calculated by finding that the $800 rent owed by the Defendant is abated by 25% ($200) for a balance of $600 to which is added $64.95 for the replacement refrigerator drawer for a total of $664.95.
Order
Therefore, it is hereby ORDERED:
1. Judgment is for the Plaintiff in the amount of $664.95.
2. award for costs will be made because the Defendant was successful in reducing the amount of her rent obligation by 25%.
This is the Decision and Order of the Court.