Opinion
0904–18
04-19-2018
GRAMATAN REALTY CORP., Petitioner, v. Renee MORRELL & Renata Morrell, Respondents.
David I. Rifas, Esq., Attorney for Petitioner, 271 North Avenue, Suite 1009H, New Rochelle, New York 10801 Renee and Renata Morrell, Pro-se Respondents, [redacted], New Rochelle, New York 10802
David I. Rifas, Esq., Attorney for Petitioner, 271 North Avenue, Suite 1009H, New Rochelle, New York 10801
Renee and Renata Morrell, Pro-se Respondents, [redacted], New Rochelle, New York 10802
Adrian N. Armstrong, J.
Petitioner, Gramatan Realty Corp., commenced this non-payment action against the Respondents, Renee Morrell and Renata Morrell alleging that they owed $2,788.50 in rent and late charges through April 2018. Respondents did not dispute the amount sought in the petition, but claimed that they were constructively evicted, and seek an abatement for warranty of habitability issues in the subject apartment.
A trial was held on April 17, 2018 and the Petitioner called as its sole witness, its Vice President, Matthew Seasonwein. Mr. Seasonwein testified that the Respondents signed a lease and moved into the subject premises on September 23, 2015. He further testified that the Respondent, Renee Morrell moved out of the apartment, prior to the lease term ending, and surrendered the keys on April 13, 2018. The lease and renewal lease between the parties was introduced into evidence as Petitioner's 1. The tenants' rent ledger was introduced in evidence as Petitioner's 2. A review of the tenants' rent ledger reflects that they owe $2,763.50 for March and April's rent and a $25.00 late fee.
Petitioner established its prima facie case that there is $2,788.50 due in rent and late fees. The burden thus shifts to Respondents to establish a defense for the non-payment of the sums due as rent and additional rent under the proprietary lease.
Respondent, Renata Morrell testified that she and her mother, Rene Morrell have felt unsafe in the building from the time that they moved in. She reported that she was attacked by an unidentified tenant outside of the subject building over a parking space. She stated that the police were called, but admitted on cross examination that the police after investigating the matter, made no arrest. She further testified that there is excessive noise in the building which negatively affects her newborn baby who suffers from major health issues.
Rene Morrell testified that although the lease had not expired, she physically moved out of the subject apartment in early April, and turned over the keys to her landlord on April 13, 2018. She claims that there has been a mold condition in her apartment, but didn't specify when this condition existed and when if ever it was remedied by the landlord. Ms. Morrell also complained that the locks on her windows in the apartment do not work. In addition to these conditions, Ms. Morrell testified that she has felt unsafe in the building from the time she moved in. Beginning in late 2015, she testified that on one occasion two building employees and an exterminator entered her apartment without her permission. Ms. Morrell also filed a complaint with the Mount Vernon Police Department on April 10, 2017 alleging that the Petitioner's superintendent was harassing her when he stared at her the previous night while she was sitting inside a parked vehicle near her residence. Ms. Morrell also filed a police report on January 24, 2018 alleging that at the end of November of 2017 she saw somebody come down her fire escape and then run back up. The police complaints were introduced into evidence as Respondents' Exhibit D and E respectively. Ms. Morrell also testified that there is excessive noise in the building, and drug trafficking in or near her building. Ms. Morrell is seeking a one year abatement for the conditions in her apartment and building which she claims caused her to vacate the premises before the expiration of the lease. Respondents also seek a return of their security deposit.
Tenants' defenses are based on breach of the warranty of habitability ( Real Property Law § 235–b ) and constructive eviction (see, e.g., Barash v. Pennsylvania Term. Real Estate Corp. , 26 NY2d 77 [1970] ).
In order to establish a claim of constructive eviction, respondent must establish by a preponderance of the credible evidence that petitioner's wrongful acts substantially and materially deprive the tenant of the beneficial use and enjoyment of the leased premises (see, Barash v. Pennsylvania Term. Real Estate Corp. , supra at 83). Here, there is no evidence that any act on the part of the landlord substantially and materially deprived the respondents of the beneficial use of the property.
RPL § 235—b requires a landlord to, among other things, maintain an apartment fit for human habitation and free of conditions which would be dangerous, hazardous, or detrimental to a tenant's life, health or safety. This "implied warranty protects ... against conditions that materially affect the health and safety of tenants or deficiencies that in the eyes of a reasonable person ... deprive the tenant of those essential functions which a residence is expected to provide." ( Solow v. Wellner , 86 NY2d 582, 588 [1995], quoting Park West Mgt. v. Mitchell , 47 NY2d 316, 328 [1979].) Where a landlord has breached the warranty of habitability, the court may, among other things, award a tenant a rent abatement representing the diminution in value of the services she contracted for. (Park West Mgt. v. Mitchell , supra at 329.)
To the extent that Respondents seek to obtain damages on the ground that Petitioner had violated the warranty of habitability ( Real Property Law § 235–b ), it was incumbent upon Respondents to demonstrate that the premises had been unfit for human habitation, or that the condition of the premises had deviated from the uses reasonably intended by the parties (id. ; see Park W. Mgt. Corp. v. Mitchell , 47 NY2d 316, 325 [1979] ), by offering proof as to the dates, severity and duration of the conditions complained of (see Anoula Realty Corp. v. Weiss , 16 Misc 3d 133[A], 2007 NY Slip Op 51496[U] [App Term, 2d & 11th Jud Dists 2007] ; Liberti v. Fitzpatrick , 1 Misc 3d 134[A], 2003 NY Slip Op 51643[U] [App Term, 9th & 10th Jud Dists 2003] ; Eke v. Ayanru , 2002 NY Slip Op 40206[U] [App Term, 2d & 11th Jud Dists 2002] ). Respondents were also required to show that defendants had notice of the conditions complained of ( Anoula Realty Corp. v. Weiss , 16 Misc 3d 133[A], 2007 NY Slip Op 51496[U] ; New Franconia Assoc. v. Popper , 2003 NY Slip Op 51116[U] [App Term, 1st Dept 2003] ).
After reviewing the evidence submitted, and hearing the testimony of the witnesses, this Court finds that the Respondents failed to prove their claims with the requisite degree of specificity. As to the security deposit, in a case such as this where the rental agreement is terminated and there is no claim for damage to property against the Tenants, the security deposit may be used in full or partial satisfaction of a judgment because under that scenario the right to recover the security deposit is considered a liquidated claim (see D & B Enters. No. 2 v. Cablam Inc. , 188 Misc 2d 522 [App. Term, 9th & 10th Jud. Dists. 2001] ).
Accordingly, the court awards petitioner a final judgment in the amount of $2,788.50 for all rent due through April 2018. Petitioner is also entitled to fees and costs pursuant to the subject lease in the amount of $270.00.
This constitutes the decision and order of the court.