Opinion
2006-CV-5596.
Decided April 23, 2009.
To: Robert W. Wood, Esq. (Counsel for the Plaintiffs).
Ross J. Cammarata, Esq. (Counsel for the Defendants).
Over several days of court proceedings, this court conducted a civil bench trial relating to a house rented by the plaintiffs from the defendants at 35 Lake Bluff Road in Irondequoit. The plaintiffs lived in the house from mid-August, 2005 through mid-April, 2006, but only paid the defendants a $ 1,100 security deposit and pro-rated August rent. They assert the remaining rent was withheld because no certificate of occupancy had been issued by the town, because renovations were incomplete and the because the premises was unhealthy. They claim breach of contract, fraud and unjust enrichment. The defendants have raised an affirmative defense that the plaintiffs knew any certificate of occupancy issues were related to a partially demolished structure on land adjacent to that rented and that the plaintiffs also were aware the defendants were working with the town to resolve that issue. The defendants also note that the plaintiffs knew work was not entirely complete when they took possession and that the house was safe and habitable. The defendants have also asserted two counterclaims alleging the lease dictates they are entitled to rent from September, 2005, through June, 2006, and further that the plaintiffs caused damage to the premises above normal wear and tear. Both parties are asking for $ 15,000 in damages. The court has heard testimony, judged the demeanor and other non-verbal criteria for assessing a witness' credibility, viewed exhibits and listened to arguments of counsel. For the reasons which follow, the court finds that each party has demonstrated a right to partial recovery.
In the spring of 2005, the plaintiffs were looking for a place to live. In addition to the plaintiffs, the household would also include Mr. Campo's special needs son, two dogs and three cats. Being in a school district which could accommodate the child's condition and "settling-in" before school was to begin the following fall were critical factors in the selection process. While driving in Irondequoit one weekend, they saw a lakeshore house being rehabilitated at 35 Lake Bluff Drive in which they had some interest. Thereafter, the plaintiffs began discussion with the defendants about renting the house even though all of the renovations might not be completed by an anticipated mid-August move-in date.
The Lease
The parties signed a two year lease for "53 Lake Bluff Road Irondequoit, 14622. Single Family Residence" in June of 2005. It provided that the plaintiffs were responsible for utilities and were to pay monthly rent of $ 1,100 which was to be received by the first Friday of each month to avoid a twenty-five dollar late fee. The stove and refrigerator were also included in the lease. The security deposit paid by the plaintiffs was to be returned unless there was damage beyond normal wear and tear. Also, during the tenancy, the plaintiffs were obligated to keep the house in "good condition" and to "notify landlord immediately if any repairs are necessary." In return, the defendants promised "to regularly maintain the building and grounds in a clean, orderly, and safe manner." Moreover, the landlords agreed "upon notice by tenant to complete within a reasonable time, all necessary repairs. . . ." The lease provision relating specifically to code compliance inexplicably does not refer to the Town of Irondequoit and places the responsibility for code compliance on the tenant. The same paragraph of the lease appears to also charge the tenant with the responsibility to keep the property "clean and free of debris," even thought the debris predated their tenancy. Lastly, while the lease is noticeably silent as to any remedies for the tenant should the landlords fail to live up to their responsibilities, the last substantive paragraph in the lease sets forth in detail all of the rights the landlords have against the tenants. The last paragraph of the boilerplate lease covers "[a]dditional terms: (i.e. list of repairs to be made prior to or during tenancy, etc.)." Remarkably, neither plaintiff listed his concerns in the space provided nor incorporated by reference a separately drafted punch list, even though the lease clearly states that "[a]ny waiver or modification of the condition (sic) of this lease shall be in writing and signed by both the landlord and the tenant."
Lease ¶ 2. The lease is written in all capital letters, however, this opinion will use standard upper and lower case conventions.
It noted that the "tenant is responsible for the following utilities: water, gas electric, refuge." Even though any home could be viewed as a "refuge", in the context of this lease provision, the court finds nothing in the record to support a contention that the term "refuge" was meant to include property stored or abandoned by prior owners, renovation and construction debris rather than ordinary residential garbage even if the court were to find that term was a typographical error and substitute the term "refuse". Lease ¶ 5.
Lease ¶ 4. The $1,100 was to "be returned in full, after the lease expires, the apartment has been vacated and inspected and after inspection by the landlord the premises are in good condition (normal wear and tear)."
Lease ¶ 6. The lease also allowed the landlord to enter the house "at reasonable times for the purpose of inspection, maintenance or repair. . . ." Lease ¶ 8.
Under the lease, the plaintiffs agreed "to occupy the premises and. . .keep the same in good condition, reasonable wear and tear expected." The were permitted to "make any alterations, including painting, changing or adding locks or fixtures, without the written consent of the landlord." Lease ¶ 9. See also ¶ 18.
Lease ¶ 9.
Lease ¶ 10.
Lease ¶ 10.
Lease ¶ 20. The lease states that "[t]enant is responsible for snow removal at private entrance. Tenant must comply with all City of Rochester, or Town of Perry codes. Any violation incurred by tenant, including but not limited to, violations relating to the lawn, driveway and refuse will be paid by the tenant." Id.
Lease ¶ 20.
Paragraph 21 of the lease covers "Tenant Default and Landlord Remedies." Although the parties clearly contemplated it would cover rental of a house, it refers to an "apartment" instead. It provides that
"A. Landlord may give 5 days notice to tenant to correct any of the following Defaults
1) failure to pay rent on time
2) improper assignment of the lease, improper subletting
3) improper conduct by tenant or other occupant
4) failure to fully perform any other term in lease
B. If tenant fails to correct the defaults in section A within 5 days, landlord may cancel the lease by giving tenant a3 day notice to vacate. On that date the term and tenants rights to the lease automatically end and tenant must leave the apartment and give the landlord the keys. Tenant continues to be responsible for rent, expenses, damages and losses.
C. If the lease is cancelled, or rent or added rent is not paid on time, or tenant vacates the apartment, landlord may, in addition to other remedies take of (sic)the following steps:
1) enter the apartment and remove tenant belongings
2) use eviction or other lawsuit methods to take back apartment and collect any monies due
D. If the lease is ended or landlord takes back the apartment, rent and added rent for the unexpired term term becomes due and payable. Landlord may re-rent the apartment and anything in it. Tenant shall be responsible for rent, expenses, damages and losses. Tenant waives all rights to return to the apartment after possession is given to the landlord by a court."
Lease ¶ 21.
Lease ¶ 14.
Representations and Agreements Outside the Lease
Even in the absence of such a formal written addendum to the lease, the credible evidence relating to the parties' conduct, including e-mails, has established that the defendants made and the plaintiffs understandably relied upon a number of verbal representations. Although it is not referenced in the lease, the parties acknowledge that the plaintiffs provided a list of outstanding issues to the defendants when they returned the signed lease to them. That list alluded to a number of issues regarding utilities, sliding doors for the garage, refuse collection as well as landscaping.
While the Parole evidence rule generally precludes reformation of a written contract based on oral representations, "there may be circumstances where partial performance of an oral modification may avoid the requirement of a writing, the partial performance must be unequivocally referable to the claimed modification." Joseph P. Day Realty Corp., v. Jeffrey Lawrence Associates, Inc., 270 AD2d 140, 141-42(1st Dept., 2000).
Number one on the list lets the defendant's know that RG E will be put in the tenants' names once the defendants install the meter. It also references Sea breeze water. Defendants' Exhibit A. #'s 1 3.
The plaintiffs note they have "priced sliders for the garage" and ask "if we purchase them — can your construction guys insert them?" Defendants' Exhibit A, # 6.
Waste Management will bill the plaintiffs as of August 1st. Defendants' Exhibit A, # 2.
Defendants' Exhibit A, #'s 7-13.
The letter specifically informed the defendants that the plaintiffs "would like to construct a water fall and koi pond with a small patio in the back." While there is disagreement between the parties about whether the defendants were aware of and verbally allowed installation of the Koi ponds over labor day weekend, it is evident that the defendants did not provide the plaintiffs with written consent as contemplated by the lease. There was significant testimony before the court illustrating disparate views on the value of the koi pond and reclamation of that area of the yard once the plaintiffs vacated the property.
Defendants' Exhibit A, # 11.
Lease paragraphs nine and eighteen clearly require written consent before a number of similar physical alterations to the premises by the tenants
As to renovation of the basement garage, the parties disagreed regarding the extent to which they reached a meeting of the minds to go forward with the project and who would be responsible for any costs involved. Lastly, the testimony shows that the plaintiffs expended considerable time and material improving the condition of the front yard.
Less than a month after the plaintiffs moved in, Mr. Campo e-mailed a repair "punch list" to defendant Christine Bachman in compliance with his responsibilities under the lease. That triggered the defendants' obligation to tend to those issues "within a reasonable time." Most of those items, including steps and railing for the rear porch as well as storm doors were addressed by the defendants, however, the punch list failed to mention problems with mold or asbestos. Nonetheless, it is clear that the plaintiffs were dissatisfied with the timeliness of the defendants' response and the severity of the habitability issues raised.
Plaintiffs' exhibit # 30, Defendants' exhibit "B" and Lease ¶ 10.
Soon after moving in, the plaintiffs became concerned about excessive moisture and mold in their living area. Their complaint led to a Monroe County Health Department site visit in October. When someone from the Health Department inspected the house on October 28, 2005, he found a "[s]pot with water stains in den ceiling still [with] 99% moisture" and "wallboard with water mold damage." While no code violations regarding mold were found, the inspector did make recommendations regarding the size of the humidifier in use and suggested additional measures which might be undertaken to address moisture concerns.
For ease of reading, this opinion will use the term "Health Department" although the official title of the unit which inspected the premises was the "Monroe County Bureau of Public Health Engineering Indoor Air Quality/Toxics Control."
Plaintiff's exhibit # 34. While the inspector did not testify and the papers were not certified, the documents may be considered by the court not for the truth of the matters asserted but as verbal acts or acts of independent legal significance. Compare People v. Merante , 59 AD3d 207 (1st Dept., 2009) (the statement "was not offered for its truth, but as a verbal act"), In re Alexander EE, 267 AD2d 723, 726(3rd Dept.,1999)(" verbal acts" are not hearsay. They are admissible because they are "not offered to prove the truth of the statement but because the statement accompanies otherwise ambiguous conduct and lends significance to it") and (6 Wigmore, Evidence (Chadbourn rev. ed.), s 1722.("a statement or utterance which constitutes a verbal part of an act. Such statements are not hearsay if offered not for the truth of their assertions, but, rather, to attach legal effect to the conduct which they accompany").
During that visit, however, a much more serious condition was observed. The inspector found "there [was] damaged asbestos insulation on the ductwork that needs repair" in the basement garage. This finding led to a subsequent "Notice of Violation" by the Health Department which was not finally resolved until the defendants were readying the property for re-rental in the late spring of the next year. Specifically, the condition of this area of the residential rental property was found to be in violation of "Article II Section 569-10.B.(1) and Article IV Section 569-34.B of the Monroe County Sanitary Code," because "[t]enants and servicemen who enter the area are at risk for asbestos exposure and there is also the potential for asbestos to get tracked into the rest of the building." The November 1, 2005 violation notice
Plaintiff's exhibit # 34.
A re-inspection by the Department of Health on June 27, 2006, "revealed satisfactory removal of the asbestos insulation on the heat ducts in the garage and basement." Thus, the defendants were informed they could "now proceed with the other work you have planned in those areas." Plaintiffs' exhibit # 34 — letter of June 27, 2006.
Plaintiffs' exhibit # 34 — notice of violation dated November 1, 2005.
" directed [the defendants]to abate the violations within twenty-one (21) business days of [their] receipt of this Notice by hiring a New York State licensed asbestos abatement contractor to take the following measures :
a).Remove the asbestos insulation throughout the basement and garage or restore all damaged areas to an intact condition with an encapsulating material such as wetwrap. . . .
b).Clean up any asbestos debris from the floor and any other
places that it may have spread into the building.
Id. In a letter sent on May 28, 2008, after this litigation had commenced, the inspector clarified that he had not found that asbestos had in fact spread to any other area of the house, but only if that were to be the case that it should be addressed appropriately.
Id. In a letter sent on May 28, 2008, after this litigation had commenced, the inspector clarified that he had not found that asbestos had in fact spread to any other area of the house, but only if that were to be the case that it should be addressed appropriately.
The notice also suggested that "[t]o limit your liability and protect the health of anyone who may need to enter the basement or garage, you should restrict access except for emergency situations and post a notice of an asbestos hazard until the problem is abated." There is no evidence before this court that any such hazard notice was posted.
Plaintiffs' exhibit # 34 — notice of violation dated November 1, 2005.
The plaintiffs and the Health Department were not the only ones alarmed about the condition of the property. In early September, 2005, officials from the Town of Irondequoit showed concern regarding a certificate of occupancy for the entire property on the tax account. That account included not only the building rented by the defendants and its curtilege but also encompassed the open foundation of a building located about two hundred feet away. Discussions between the plaintiffs and defendants followed and the plaintiffs' began to withhold rent. Thereafter, the defendants assured the plaintiffs that they would be held harmless if either the Town or the County forced them to leave the premises over those issues. Neither did and both parties acknowledge that the plaintiffs paid no more rent after their August payment.
Plaintiffs' exhibit # 32.
Analysis
The issue of unpaid rent constitutes the most concrete framework within which to begin evaluating the claims in this case because the facts are undisputed. The plaintiffs signed a two-year eleven-hundred dollar a month residential lease to live in the defendants' house on Lake Bluff Road. Although the rent due from September, 2005 through March, 2006 was $ 7,700, they forwarded no such funds to the defendants even though they occupied the premises through the entire period. After the plaintiffs vacated the house and further repairs were performed by the defendants, the house was re-rented as of July 1, 2006.
Although for years there has been a lively dispute between lower courts regarding the alleged duty of a residential landlord to mitigate losses by undertaking efforts to re-rent premises after a tenant departs prematurely, the issue was conclusively resolved when the Second Department recently held that "[w]ell-settled law in this state imposes no duty on a residential landlord to mitigate damages". The court found support for its ruling in the words of the Court of Appeals which had earlier noted that while New York
Rios v. Carrillo , 53 AD3d 111 , 115(2nd Dept., 2008). Accord Gordon v. Raymond Eshaghoff, — AD3d — 2009 WL 711546(2nd Dept., decided March 17, 2009) and Smith v. James, 22 Misc 3d 128 (A) (Supreme Court, Appellate Term, 9th 10th Dist., 2009). Compare 88th Street Realty, L.P. v. Maher 21 Misc 3d 190 , 192(N.Y.City Civ.Ct., 2008)("when the lease has terminated and a subtenant or roommate remains in possession, the landlord has a duty to mitigate the record tenant's damages by proceeding expeditiously with an eviction.").
law imposes upon a party subjected to injury from breach of contract, the duty of making reasonable exertions to minimize the injury . . . Leases are not subject to this general rule. . .unlike executory contracts, leases have been historically recognized as a present transfer of an estate in real property . . . Once the lease is executed, the lessee's obligation to pay rent is fixed according to its terms and a landlord is under no obligation or duty to the tenant to relet, or attempt to relet abandoned premises in order to minimize damages.
Holy Properties Ltd., L.P. v. Kenneth Cole Productions, Inc., 87 NY2d 130, 133(1995).
Holy Properties Ltd., L.P. v. Kenneth Cole Productions, Inc., 87 NY2d 130, 133(1995).
Thus, absent other findings by this court and disregarding potential damage to the premises which might result from allowing the property to remain unoccupied for fifteen months, the defendants could have left the property vacant until the lease was up and sued for the rent due and owing. They chose, however, not to do so.
Instead, they finally addressed the asbestos violation cited by the Health Department and made further renovations to the premises. Thereafter they re-rented it to another tenant for $50 a month less than they charged the plaintiffs even though the subsequent work performed by the defendants benefitted the new tenants and the landlord not these plaintiffs. Once the defendants undertook those required repairs to the then vacant structure, their conduct extinguished the plaintiff's rent responsibilities. As observed by the Court of Appeals
A surrender by operation of law occurs when the parties to a lease both do some act so inconsistent with the landlord-tenant relationship that it indicates their intent to deem the lease terminated. As distinguished from an express surrender, a surrender by operation of law is inferred from the conduct of the parties .
See Riverside Research Institute v. KMGA, Inc. 68 NY2d 689, 691(1986) (citations omitted)("Whether a surrender by operation of law has occurred is a determination to be made on the facts.").
See Riverside Research Institute v. KMGA, Inc. 68 NY2d 689, 691(1986) (citations omitted)("Whether a surrender by operation of law has occurred is a determination to be made on the facts.").
Based on the evidence before this court including the facts that the defendants commenced a summary eviction proceeding against the plaintiffs in January, 2006 in the Irondequoit Town Court, that after the plaintiffs left the house the defendants advertised that it was for rent in May and finally addressed the asbestos violation when a new tenant was found, the court determines that the defendants accepted surrender of the property effective May 1, 2006. The court finds, therefore that at most the plaintiffs owe eight months rent($ 8,800).
The Plaintiffs' Arguments Against Owing Rent
The plaintiff's have alleged that rent need not have been paid for a number of reasons. They assert that rent is not due because the of the defendants' fraudulent representations regarding renovations upon which they relied in signing the lease. They also maintain that rent was not due because the defendant's did not have a certificate of occupancy for the property. In addition, they argue that full rent should not be awarded because the lack of complete repair breached their rental contract and renovation rendered the premises unsafe. Lastly, they contend that even if some amount of rent or "fair use and occupancy is owed," that recovery is overshadowed by the significant improvements they made to the property.
The Validity of the Lease — Fraud
Plaintiffs have alleged in their second cause of action that the lease is unenforceable because it was fraudulently obtained. Specifically, the plaintiffs allege that at the time they signed the lease the defendants did not make them aware that the property was the subject of a foreclosure proceeding. In addition, they allege that the defendant's did not inform them at that time that there was no certificate of occupancy for the building or that there was an asbestos or mold problem. They contend that because of the "fraudulent inducements" they "suffered stress, worry, sickness and anxiety resulting in loss of sleep, nervousness and loss of enjoyment of the premises in the manner which had been expected."
Plaintiffs' complaint in this action ¶ 28.
In order for the plaintiff's to successfully claim that the residential lease was obtained by fraud on the part of the defendants they must prove a number of elements. As recited by the court of Appeals there must be
a representation of fact, which is either untrue and known to be untrue or recklessly made, and which is offered to deceive the other party and induce them to act upon it, causing injury.
Jo Ann Homes at Bellmore, Inc. V. Dworetz, 25 NY2d 112, 119 (1969) (paragraph bullets added). See also Heaven v. McGowan , 40 AD3d 583 , 584-85(2nd Dept., 2007); Daniels v. Provident Life and Cas. Ins. Co., 292 AD2d 807, 809(4th Dept., 2002); Citipostal Inc. v. Unistar Leasing, 283 AD2d 916, 918-19(4th Dept., 2001).
Jo Ann Homes at Bellmore, Inc. V. Dworetz, 25 NY2d 112, 119 (1969) (paragraph bullets added). See also Heaven v. McGowan , 40 AD3d 583 , 584-85(2nd Dept., 2007); Daniels v. Provident Life and Cas. Ins. Co., 292 AD2d 807, 809(4th Dept., 2002); Citipostal Inc. v. Unistar Leasing, 283 AD2d 916, 918-19(4th Dept., 2001).
In addition, "the plaintiff must show not only that he or she actually relied on the misrepresentation, but also that such reliance was reasonable." The credible evidence before this court dictates that this cause of action fails in several respects.
McMorrow v. Dime Sav. Bank of Williamsburgh , 48 AD3d 646 , 647-48(2nd Dept., 2008).
There is no proof before the court that there was any discussion between the parties prior to signing the lease concerning the property mortgage, the certificate of occupancy, mold or asbestos. Accordingly, the court is not in a position to assess veracity, deception, inducement or the reasonableness of any reliance on the part of the plaintiffs as to any of those factors. While the court does find that there were representations made by the defendants as to renovation of the property upon which the plaintiffs had a reasonable right to rely, they only concern removal of debris, installation of rear porch steps with hand railings and storm doors. While the untimely resolution of those issues certainly rendered the condition of the property less than optimal, there is no proof before the court that at the time the defendants promised to resolve those conditions that they did not fully intend to do so. In addition, it is clear that when the plaintiffs moved in they knew that the work still needed to be done and expected it would be accomplished after they took possession of the property. By December almost all the punch list work had been completed and the plaintiffs were still three months behind in their rent.
Compare Phillips Hurler Associates v. Flynn, 25 AD2d 475 (1st Dept., 1996) (regarding a commercial lease the court found "there is no proof that the petitioner fraudulently induced execution of the lease or made a specific representation concerning the certificate of occupancy for the intended use under the lease").
While the absence of rear porch steps, may have increased the plaintiffs' anxiety as a safety issue for the child in the home, there is insufficient proof attributing any specific injury caused only by delayed installation. The testimony showed that the special needs child required and received constant supervision. Furthermore, the plaintiffs were aware there was a steep ravine behind their house and, in fact, took advantage of the topography in constructing the koi ponds and waterfall. Since there is no proof that additional or extraordinary care was required due solely to the delayed step and railing installation, there is a failure of proof regarding any identifiable isolated injuries caused by those conditions. In addition, while such separate tort factors may not be encompassed by this court's discussion of the defendants' warranty of habitability, the issue of diminution in the rental value of house due to delayed renovation is appropriately and adequately addressed there.
Carpenter v. Smith, 191 AD2d 1036 (4th Dept., 1993).
Breach of Contract
While the court has found that the rental contract was not procured through fraud, that does not foreclose further evaluation of the contract. As the above description of the lease illustrates, this lease does not appear to have been carefully crafted with this Irondequoit house in mind. In addition, the lease which was provided by the defendants is repeat with rights which inure to the benefit of the landlord and saddles the plaintiffs with myriad responsibilities. Were the plaintiffs not as accomplished as they obviously are, this court might have occasion to rule on whether parts of the contract are unconscionable. However, one of the plaintiffs has a masters degree and the other is a business owner. They were not forced to sign the lease. Their bargaining position was equal to the defendants. Before signing the lease, they had the opportunity to set forth their understanding regarding garage and basement renovations, landscaping and removal of construction debris in paragraph twenty-one. As Robert Frost aptly noted: "good fences make good neighbors." If the defendants balked at their request to memorialize everyone's "meeting of the minds" in the lease, it would have alerted them to possible future problems and they could have walked away from the property. Even though this landlord friendly lease is lopsided, its language is clear and unambiguous. To the extent its terms do not contravene settled law, the court is bound to enforce it, not reform it.
Park Sheraton v. Grasso, 6 AD2d 492, 493-94(1st Dept., 1958).
Applicability of Multiple Dwelling Residence Laws
In the context of the plaintiffs' allegations, it has been suggested the provisions of the Multiple Dwelling Law apply in this case. However, housing such as this single family lakeside home were not the target of the law which was enacted to address public health and safety issues inherent in large densely populated communities. Specifically, there is no evidence before the court that Irondequoit has more than three-hundred twenty-five thousand residents or that three or more families lived on the premises. Both of those criteria must be present before the Multiple Dwelling Law can be applied. Accordingly, the provisions of the Multiple Dwelling Law, including the section requiring a certificate of occupancy before the premises may be occupied, do not apply in this case.
The legislative purpose of the statute notes that "intensive occupation of multiple dwelling sites, overcrowding of multiple dwelling rooms, inadequate provision for light and air, and insufficient protection against the defective provision for escape from fire, and improper sanitation of multiple dwellings in certain areas of the state are a menace to the health, safety, morals, welfare, and reasonable comfort of the citizens of the state; and that the establishment and maintenance of proper housing standards requiring sufficient light, air, sanitation and protection from fire hazards are essential to the public welfare." McKinney's Multiple Dwelling Law § 2.
McKinney's Multiple Dwelling Law § 3.
To be covered the structure must be a "multiple dwelling" which is statutorily defined as "a dwelling which is. . .rented . . .or is occupied as the residence or home of three or more families living independently of each other." McKinney's Multiple Dwelling Law § 4.
McKinney's Multiple Dwelling Law § 301(1)("No multiple dwelling shall be occupied in whole or in part until the issuance of a certificate by the department that said dwelling conforms in all respects to the requirements of this chapter, to the building code and rules and to all other applicable law").
Additionally, while the Multiple Residence Law may theoretically apply to the house rented here because it applies to municipalities with populations under three-hundred twenty-five thousand people, it has little practical application in this case because this was not a three family multiple dwelling. While some parts of this law apply to single dwelling units, most cover only multiple dwellings which is consistent with the legislative history of the statute. For instance, the rule which precludes living in residences which do not have a certificate of occupancy only applies to multiple dwellings. So too does the section which relates to "rent impairing violations" for building code transgressions. Individual dwelling units, however, are covered by provisions relating to "nuisances." While the asbestos violation, rear steps and railings in this case might arguably be such nuisances, the remedies for any violation are exercised by the municipality, not the tenant. While an individual may sue in tort if an actual injury is caused by the nuisance, no such injury was proven in the case before this court.
McKinney's Multiple Residence Law § 3(1). Local communities may enact rules and regulations requiring a Certificate of Occupancy for two family dwellings since the Fourth Department has concluded "that the New York State Legislature has not evinced a desire to preempt regulation of dwellings where fewer than three families live independently, and we further conclude that no express conflict exists between the state and local laws with respect to two-family dwellings." Kase v. City of Rochester 15 AD3d 928 , 929(4th Dept., 2005).
The legislative findings supporting the multiple residence law note that "intensive occupation of multiple dwellings having three or more families, inadequate provision for light and air, insufficient protection against and defective provisions for escape and fire, as well as the amount of improper sanitation existing in multiple dwellings throughout this state are a menace to the health, safety, morals, welfare, and reasonable comfort of its citizens; and that maintenance of proper housing standards requiring sufficient light, air, sanitation and protection from fire hazards are essential to the public welfare." McKinney's Multiple Residence Law § 2.
McKinney's Multiple Residence Law § 302(1)("No multiple dwelling shall be occupied in whole or in part until" it has a certificate of occupancy).
McKinney's Multiple Residence Law § 305(a)(2)(a)(a" rent impairing' violation within the meaning of this section shall designate a condition in a multiple dwelling which. . . .").
A "dwelling" is defined as a "building or structure which is occupied in whole or in part as the home, residence or sleeping place of one or more persons." McKinney's Multiple Residence Law § 4(13).
The law dictates that a nuisance be held to embrace whatever is dangerous to human life or detrimental to health and shall include but not be limited to: (a) a public nuisance as known at common law, statutory law and in equity jurisprudence, and (b) a dwelling that, in violation of this chapter or of any other state or local law, ordinance or regulation does not have adequate egress, safeguards against fire, adequate electrical service, installation and wiring, structural support, ventilation, plumbing, sewerage or drainage facilities, is overcrowded or inadequately cleaned or lighted and the condition constituting such violation is dangerous to human life or detrimental to health. All such nuisances are hereby declared to be unlawful.
McKinney's Multiple Residence Law § 305(1) (emphasis added). Compare Multiple Dwelling Law § 309 as well as § 306, § 307, § 308. Th City Court has authority to issue final and provisional remedies for violations pursuant to Uniform City Court Act § 203(a)(2) and § 209(b)(4).
Compare Witherbee Court Associates v. Greene, 7 AD3d 699,701-02(2nd Dept.,2004) (no proof of nuisance) with Hamlin v. McTighe, 240 AD2d 792 (3rd Dept., 1997) (nuisance found).
Contrary to the plaintiffs position, the Court finds that because neither the provisions of the Multiple Dwelling nor Multiple Residence laws apply in this case, the defendants are not precluded from advancing their rent nonpayment arguments, or from seeking compensation for fair use and occupancy. That does not mean, however, that the plaintiffs were necessarily required to pay full rent during the eight month period still at issue before the court since statutory provisions relating to warranty of habitability in the context of residential property rental certainly apply in this case.
See Brown v. Williams, 132 Misc 2d 438, 441(City Court of Yonkers, 1986). See e.g. Corbin v. Briley, 192 Misc 2d 503, 505(Supreme Court, Appellate Term, 2nd Dept., 2002) and 471 Broadway, LLC v. Schwartzwald, 2002 WL 538091(Supreme Court, Appellate Term, 1st Dept., 2002) (remanded to determine the "landlord's good faith compliance with the applicable legalization process and timetable, and whether landlord was precluded from doing so by tenant's actions or other events beyond its control.").
There is a split between the First Department and the Second Department in cases wherein those statutes do apply as to whether recovery of "fair use and occupancy" can be had. Compare Zane v. Keller, 240 AD2d 208, 209(1st Dept., 1997) (while the landlord did nothing to obtain a C of O, the tenant who remained in residence and had no intention of vacating did not "claim the premises pose[d] a threat to his health and safety.") and Gale P. Elston, P.C. v. Dubois , 18 AD3d 301 , 303-04(1st Dept., 2004) (issue of "fair use and occupancy" to be determined on remand) and Sheila Properties, Inc. v. A Real Good Plumber, Inc. , 59 AD3d 424 (2nd Dept., 2009)("An owner of a de facto multiple dwelling who fails to obtain a proper certificate of occupancy or comply with the registration requirements of the Multiple Dwelling Law cannot recover rent or use and occupancy.").
Breach of Contract and Warranty of Habitibility
As noted earlier, in this case, the defendants promised "to regularly maintain the building and grounds in a clean, orderly, and safe manner" and once notified of deficiencies by the plaintiffs the defendants were contractually obligated to "complete within a reasonable time, all necessary repairs." Based on the credible evidence before the court, it is clear that the defendants did not always honor this pledge and breached this contract clause. Even if that explicit language was not in this lease, a landlord's agreement to rent residential property in New York includes an implied promise that the condition of the property when rented does not pose certain risks to the tenant and that the premises "will remain so throughout the lease term." By statute,
Park West Mgt. Corp. v. Mitchell, 47 NY2d 316, 327(1979).
[I]n every written or oral lease or rental agreement for residential premises the landlord or lessor shall be deemed to covenant and warrant that the premises so leased or rented and all areas used in connection therewith in common with other tenants or residents are fit for human habitation and for the uses reasonably intended by the parties and that the occupants of such premises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety. When any such condition has been caused by the misconduct of the tenant or lessee or persons under his direction or control, it shall not constitute a breach of such covenants and warranties.
McKinney's Real Property Law § 235(b)(1). Furthermore, an "agreement by a lessee or tenant of a dwelling waiving or modifying his rights as set forth in this section shall be void as contrary to public policy." McKinney's Real Property Law § 225(b)(2).
McKinney's Real Property Law § 235(b)(1). Furthermore, an "agreement by a lessee or tenant of a dwelling waiving or modifying his rights as set forth in this section shall be void as contrary to public policy." McKinney's Real Property Law § 225(b)(2).
The statute was designed to "redress the traditional legal imbalance in favor of landlords [and] tenants who customarily were virtually powerless to compel the performance of essential services [by placing them] in legal parity with landlords." The house rented in this case is covered by this statutory warranty of liability in addition to the lease provision cited above.
See Vanderhoff v. Casler, 91 AD2d 49, 49-52(3rd Dept., 1983).
Not all questionable conditions are covered by the warranty. It "protects only 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." Moreover, covered claims only reduce the value of the premises to a tenant and a violation of the warranty rarely extinguishes all rent responsibility. Moreover, in such cases, "the proper measure of damages is the difference between the fair market value of the premises if they had been as warranted and the value of the premises during the period of the breach." Thus, the question before this court is whether conditions complained of by the plaintiffs are "conditions that, while they do not render an apartment unsafe or uninhabitable, constitute deficiencies that prevent the premises from serving their intended function of residential occupation"
Solow v. Wellner, 86 NY2d 582, 588(1995) (citations and internal quotation marks omitted).
Ocean Rock Associates v. Cruz, 66 AD2d 878, 879 (2nd Dept.,1978) (complete abatement for "grievous and substantial breach of warranty" which consisted of "a dripping kitchen faucet, a leaking bathroom sink, a toilet which ran continuously and a tear in the vestibule carpet outside their apartment for some six or seven months, and that there had been a lack of heat."); Mayourian v. Tanaka 188 Misc 2d 278, 279(Sup.Ct. App. Term, 2001)("100% abatement of rent for the three months following defendant's surrender of the townhouse is appropriate" given that odors from garbage dumpster permeated the nearby apartment and deprived the tenant the use of the deck.)
Nostrand Gardens Co-Op v. Howard, 221 AD2d 637, 638(2nd Dept., 1995).
Solow v. Wellner, 86 NY2d 582, 589(1995).
Courts have found breaches of the warranty of habitibility in a variety of situations including: lack of heat and/or hot water; lack of an air conditioner in summer; low water pressure; water damage from roof leaks; nearby construction and renovation work; lack of light and air from new building next door; presence of rats and roaches; bedbug infestation; persistent pet odors from prior tenants; second hand smoke from a neighbor; odor from a dumpster; neighbor noise; a registered sex offender neighbor; and neighborhood drug dealers.
Salvan v. 127 Management Corp., 101 AD2d 721, 722(1st Dept.,1984) (lack of heat and hot water, widespread vermin and rodent infestation, failure to repair) Parker 72nd Associates v. Isaacs, 109 Misc 2d 57, 58(NYC City Ct., 1980)(20% abatement for a lack of hot water and 30% for a lack of heat) 111 East 88th Partners v. Simon, 106 Misc 2d 693, 694(NYC Civil Ct., 1980) (no heat, no hot water and no passenger elevator).
Whitehouse Estates, Inc., v. Thomson, 87 Misc 2d., 813(NYC Civil Ct., 1976) (no air conditioner during summer and problems with stove).
H R Bernstein v. Barrett, 101 Misc 2d 611 (NYC Civil Ct.,1979) (the use of neighborhood fire hydrants reduced water pressure — the landlord should have brought water pump).
Century Apartments, Inc. v. Yalkowsky, 106 Misc 2d 762, 764(NYC Civil Ct.,1980) (leaks and damaged plaster and the deprivation of hot water); McGuinness v. Jakubiak, 106 Misc 2d 317, 325(NYC Civil Ct.,1980) (roof leaks, flooding, and resultant property damage); Blatt v. Fishkin, 101 Misc 2d 888, 889(NYC Civil Ct.,1979) (multiple roof leaks, rodents and other vermin, broken and leaking pipes the lack of heat for fifty winter days).
Minjack Co. v. Randolph, 140 AD2d 245, 249(1st Dept., 1981); Forest Hills No. 1 Co. v. Schimmel, 110 Misc 2d 429 (N.Y.City Civ.Ct.,1981) (the landlord's renovation and construction work in common area).
Sutton Fifty-Six Co. v. Fridecky, 93 AD2d 720, 722(1st Dept.,1983) (lack of light and air caused by building being erected next door).
Town of Islip Community Development Agency v. Mulligan, 130 Misc 2d 279, 280 (District Ct., Suffolk Cnty.,1985) (existence of roaches and rats with only token attempts to exterminate).
Jefferson House Associates, LLC v. Boyle, 6 Misc 3d 1029 (A) (Ossining Town Court, 2005) (bedbugs); Ludlow Properties, LLC v. Young , 4 Misc 3d 515, 519(NYC Civil Ctr., 2004)(bedbugs).
Kekllas v. Saddy, 88 Misc 2d 1042, 1044(Nassau County District Ct., 1976)(cats); Tonetti v. Penati, 48 AD2d 25, 27 (2nd Dept.,1975)(dogs, odor persisted notwithstanding cleaning service efforts, furnace emitted unbearable odor and rats in house at night).
Poyck v. Bryant , 13 Misc 3d 699, 702(NYC Civil Ct., 2006) (secondhand smoke pervasive).
Mayourian v. Tanaka 188 Misc 2d 278, 279(Sup.Ct. App. Term, 2001) (odor from nearby dumpster). Compare Elkman v. Southgate Owners Corp. 233 AD2d 104, 105 (1st Dept.,1996) (summary judgment proper retail fish odor raises a question of fact.)
Nostrand Gardens Co-Op v. Howard, 221 AD2d 637, 638(2 Dept.,1995) (excessive late night and early morning noise from neighbor's apartment").
Knudsen v. Lax , 17 Misc 3d 350 (Watertown City Court, 2007) (having a level three sex offender move into the neighboring apartment was a safety threat that fell within the reach of the warranty of habitability). The court also found a violation of the lease's implied covenant of good faith and fair dealing."
U.S. Bronsville II, HDFC v. Nelson, 3 Misc 3d 1107 (A) (NYC Civil Ct., 2004) (roach infestation, drug dealers).
As to the amount of abatement from such circumstances, one well respected treatise suggests that "[a]s a general rule, the courts have granted rent abatements of 10% to 20% for minor breaches of warranty, or general deterioration of building services, 30% for moderately serious breaches, and 50% — 60% for most serious breaches." The landlord's duty to mitigate or eliminate conditions affecting habitibility have never been limited to those causes which are immediately apparent. Whatever the mechanical, structural or other major building problem, it is the tenant who suffers their effect and the landlord who is generally held responsible for addressing the cause.
2 Dolan, Rash's Landlord and Tenant — Summary Proceedings, § 18:8 at 40-41(4th ed) (citations omitted).
One of the concerns the plaintiffs raised with the defendants early on involved the effects of excessive moisture in the living area which they believe caused incremental paint peeling and worsening black spots on the walls which the plaintiffs feared was mold. While the source of the moisture was not definitively proven, it is clear that the landlord allowed one side of a roof dormer to remain unsealed with the top of flashing and wood sheathing exposed to the elements. Whether this was the source of the excessive moisture or not, the complaints of the plaintiffs and the report from the Department of Health provided the defendants with constructive notice that there was a problem which they had an obligation to resolve. Long ago, after noting that "damp walls were plain notice of something to be remedied," the Court of Appeals found that a "landlord may not sit helplessly by and say that he cannot see what produces such conditions."
Plaintiffs' exhibit # 8. There was no Tyvek or other waterproof membrane installed and it was not shingled as were the other vertical roof surfaces. The defendants questioned whether poorly supervised bathing may have caused the problem and thus the "condition has been caused by the misconduct of the tenant". McKinney's Real Property Law § 235(b)(1) That view does not seem logical given the symptom's longevity and persistence. Accordingly, the court finds insufficient proof that the tenants caused the moisture problem.
Queeney v. Willi, 225 NY 374 (1919).
The court credits the testimony of the plaintiffs that they told the defendants about the moisture problem and finds that the defendants failed to appropriately address the issue. In addition, the engineer hired by the defendants found some indication of dampness in the basement. While the defendants' engineer does not inspect for mold, he did suggest that "for some individuals the presence of mold may aggravate certain respiratory conditions or cause more serious health problems." The court finds that the progressively worsening condition thought by the plaintiffs to be mold and the peeling paint which whether lead based or not endangered the resident child were violations of the warranty of habitibility which by themselves resulted in a twenty percent diminution in the value of the leasehold from October through March ($ 220 x 6 = $ 1, 320).
Defendants' exhibit "G" — Warren Associates inspection report, page 3.
Defendants' exhibit "G" — Warren Associates inspection report, page 5. There is no indication whether this entry was made because of the dampness in the basement which was also noted in the report.
Plaintiffs' exhibits # 1, # 3, # 4.
The plaintiffs have also raised health and safety concerns due to the presence of junk cars and debris in the rear yard which provided a haven for racoons during August and September. The court finds that the defendants moved as quickly as they could given the difficult terrain to address a problem which was readily apparent to the plaintiffs when they moved in. Therefore, the court declines to adjust the plaintiffs August or September rent obligation on that account.
Plaintiff s' exhibit # 11.
The same cannot be said, however, for the delay in providing steps with an adequate railing at the rear of the house which abutted the ravine. The engineer's report commissioned by the defendants in September listed the "temporary rail" and the lack of steps off the porch and recommended rectifying the issues to "meet current safety standards." The delay in addressing those conditions precluded the tenants from using that entrance to the house and endangered anyone who went out onto that porch. As hazardous as the condition was for adults, it presented an even more grave danger for the child who lived in the house. Accordingly only two of the three entrances to the house were safe. The court finds that this condition alone reduced the value of the rental by twenty-five percent for the first four months($187.50 x 1 = $187.50 plus $ 275 x 3 = $ 825 equals $ 1,012.50).
Plaintiffs' exhibits # 9, # 10 # 12.
Defendants' exhibit "G" — Warren Associates inspection report, page 5
While the plaintiffs complain of the inadequacy of the other doors vis-a-vis air infiltration, the court finds that the landlords did replace a door and installed storm doors before the dead of winter. The invoices submitted by the defendants illustrate that this work was a continuation of significant efforts by the defendants to upgrade and rehabilitate this property with new windows and doors. The condition of those doors did not make the residence uninhabitable for the period prior to replacement and the court declines to award any damages on this claim.
The "before" photos contained in defendants' exhibit "L" illustrate clearly the extensive rehabilitation this property needed and the "M" series of photos show significant improvements to the interior of the house which are listed chronologically in defendants' exhibit "K".
Defendants' exhibit "J" — First Choice Glass Estimate for replacement of 26 windows.
The Health Department's asbestos violation represents the most serious issue regarding habitability. The loose asbestos was found on basement heating duct work during their inspection in late October, 2005. The evidence before this court includes proof that the defendants replaced the furnace in June of 2005. Those efforts apparently included "any sheet metal work required to adapt existing ductwork." The court finds inescapable the conclusion that at least one of the defendants had occasion to view the condition of the asbestos bearing ducts prior to October. It is also noteworthy that the engineering inspector hired by the defendants to conduct a "limited structural and mechanical inspection" specifically did not "include an investigation for the presence of asbestos" even though he was qualified to do so. The record does not contain any indication why the defendants who were required by the Town of Irondequoit to get an engineers inspection did not contract for a more extensive inspections since this one specifically noted that with this limited review, the inspector would not "check for conformance to past or present codes or regulations."
Plaintiffs' exhibits # 5 # 6.
Defendants' exhibit "J" — Empire Heating and Air Conditioning Proposal accepted by Christine Bachman on 6/1/09 with bill paid on 6/10/09.
Defendants' exhibit "G" — Warren Associates report dated September 22, 2005.
Defendants' exhibit "G" — Warren Associates report dated September 22, 2005.
Even if the defendants had no earlier awareness of the asbestos, once they received the notice from the Health Department, they had twenty-one days to remediate the problem which ultimately only cost $500 to resolve. Yet, there is nothing in the record before this court that the defendants locked and secured the asbestos area or posted any signs warning people of the condition. In addition it is clear they did not attempt the repairs required by the Health Department until they had re-rented the property in June, 2006. The defendants were responsible both under the lease and the law of this state to do the work in a timely fashion. Their inattention to this severe heath and safety issue health was dangerous and inexcusable. While there is insufficient evidence before the court to support tort liability for infliction of emotional distress, the court finds that a separate sixty percent abatement of rent under section 235(b) from November through March is appropriate($ 660 x 5 = $ 3,300).
Defendant's exhibit "J" — R J Asbestos Lead Removal Co., Inc. Invoice dated 6/20/06.
P.A. Bldg. Co. V. City of New York, 10 NY3d 430 (2008); Chemical Bank v. Stall, 272 AD2d 1, 16 (1st Dept., 2000); Arnot Realty Corp. V New York Telephone Co., 245 AD2d 780, 782-83(3rd Dept., 1997); Linden Blvd. V. Elota Realty Co., 196 AD2d 808, 810 (2nd Dept., 1993).
Fischer v. Maloney, 43 NY2d 553, 557(1978). The Court of Appeals cited with approval the definition of the cause of action contained in the second edition of the Restatement of Torts: "[o]ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress." It is clear that liability is appropriate "only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Id. As devastating as the defendants' foot dragging was to the plaintiffs, it neither rose to that level nor necessitates consideration of punitive damages.
Accordingly, under the statutory warranty of habitability, the aggregate abatement necessitated by the defendants' failure to address the moisture issues, the rear steps and the friable asbestos results in an offset of $ 5, 632.50 against the rent owed by the plaintiffs.
Unjust Enrichment
In their third cause of action the plaintiffs assert that because "of the extensive labor and materials provided by [them] to the outside of the. . .property, landscaping, clean up and dramatic improvement to the exterior of the property, defendants have been unjustly enriched," even though those projects were suggested by the plaintiffs not the defendants. Not only do the defendants contest this claim but they allege that they should be compensated for costs associated with restoration of the backyard necessitated by installation of the Koi ponds and waterfall.
The court credits the plaintiff's proof regarding the significant sum one would expect a professional firm would charge to do the work the plaintiffs so diligently and meticulously performed. Moreover, the roadside front yard improvement was stunning and certainly would have helped quell any possible concerns neighbors may have had about the effect the condition of the building's exterior might have previously had on the neighborhood. Although the secluded Koi pond in the backyard would not necessarily produce a similar community benefit, it appears to have been very well thought out and constructed. The issue, however, is not the quality or the value of the work, but who should bear the cost.
Unjust enrichment provides a quasi contractual equitable remedy which does not apply "where the parties have entered into a contract that governs the subject matter." The lease does not encompass these specific projects. There was no meeting of the minds regarding construction of the Koi ponds with their connecting waterfall. In addition, while the defendants consented to planting the Hosta their acquiescence was not accompanied by separate consideration and did not create a contract. Thus, only equitable relief based on these landscaping efforts may be considered by the court.
Cox v. NAP Const. Co., Inc. , 10 NY3d 592 (2008) citing Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 388(1987). See also Goldman v. Metropolitan Life Ins. Co. 5 NY3d 561 , 572(2005).
As to the Koi ponds and waterfall, the court credits the testimony of the defendants that while there had been some discussion of a Koi pond, they did not give final approval to the plan. The court also finds they had no interest in being responsible for the ongoing expense associated with upkeep of the project. Moreover, while the plaintiffs thought the project would enhance the wooded back lot, there is no credible evidence before the court that the defendants shared the plaintiffs' aesthetic preferences. The court finds that the Koi ponds and waterfall were constructed by the plaintiffs without expectation of compensation from or contribution by the defendants. The pictures before the court illustrate that any alteration to the rugged back yard caused by the waterfall and Koi ponds was minor and that restoration could be easily accomplished without much expense. Accordingly, they court will award no damages for either party in connection with that project.
Given the Plaintiffs' efforts to procure basement garage renovations allowing for an office and artisan's studio with sliding glass doors, it is possible that the Plaintiffs hoped one day to be able to even more fully appreciate the fruits of their hillside labors.
The planting of the Hosta, however, raises different issues as the court finds not only did the defendants consent to that work being done but they reaped a benefit when many of them were left in the ground when the plaintiffs moved away. Had the work been done by a contractor, the expense would have been considerable as noted by the professional who testified on behalf of the plaintiffs. Yet, under New York's lien law, it is unlikely such a landscaper could recover from these defendants. For over a hundred years our courts have adhered to precepts laid down by the Court of Appeals in cases involving landlord liability for paying suppliers and artisans hired by tenants to work on rented property. Those cases recognize
Plaintiffs' exhibit # 35 — Geyssens estimate for materials was $ 5,230 for labor materials.
[t]here is a marked distinction between the passive acquiescence of an owner in that he knows the improvements are being made, improvements which in many cases he has no right to prevent, and his actual and express consent or requirement that the improvement shall be made. It is the latter that constitutes the consent mentioned in the statute. To fall within that provision the owner must either be an affirmative factor in procuring the improvement to be made, or, having possession and control of the premises, assent to the improvement in the expectation that he will reap the benefit of it.
Rice v. Culver, 172 NY 60-65(1906).
Rice v. Culver, 172 NY 60-65(1906).
By that definition, it is clear that the defendants did not consent to be charged for the value of the Hosta or expect when the work was done that the front and side yard would necessarily look the same once the plaintiffs had lived in the house under the lease for two years. In fact, the record clearly shows that the plaintiffs did not expect when they did the work that they would be reimbursed. Instead, they planned to be able to sit on the front porch and look over the plants as they gazed at the lake for at least the next two years. Thus, the defendants have no liability by analogy to the Lien Law. Yet that does not mean they can't be held liable under the facts of this case for the "reasonable value of the services rendered." Here the cases under the lien law and the doctrine of unjust enrichment dovetail.
Harner v. Schecter, 105 AD2d 932 (3rd Dept., 1984)("consent may be inferred from the terms of the lease and the conduct of the owner"). See also Henske Sons, Inc. v. Cold Spring Holding Corp., 39 AD2d 769, 770 (2nd Dept.,1972)("Without an express assumption, a landlord is not responsible for the debts of his tenant arising out of the tenant's written agreement with a contractor for the improvement of the landlord's property, even though the landlord receives the ultimate benefit").
Scrufari v. Cowdrick, 64 AD2d 1016 (4th Dept.,1978).
There is a stark contrast between the exterior of the house before renovation depicted in defendants' photographs and that shown after planting in the plaintiffs' pictures from 2005-06 and August, 2008. Many of the Hosta planted by the plaintiffs are still there in front of and on the side of the house. They grace those areas and improve the appearance of the outside of the house. Had the plaintiffs remained in the house for two years, the benefit would have flowed to them. Instead, they had to leave because of the defendants' delay in addressing habitability issues. The defendants and subsequent tenants now profit from the plaintiffs' hard work . Under the circumstances, the court finds such unjust enrichment cannot be countenanced and the plaintiffs should be compensated. Therefore, based on the uncontroverted testimony regarding the value of the Hosta plantings, the court finds the defendants have been unjustly enrichment in the amount of $1,140.
Defendants' exhibits "E", "F" and "L".
Plaintiffs' exhibits # 14, # 19, # 20.
Plaintiffs' exhibits # 38, # 39, # 40 and # 41.
The Security Deposit
The plaintiffs have sought return of the security deposit and the defendants argue that it should be applied against damages to the house attributable to the plaintiffs over and above "normal wear and tear". To buttress their arguments, the defendants have submitted photographs, estimates from contractors and picture hanging nails removed from the walls. The plaintiffs assert that the larger nails were necessary to protect the walls and floor from damage where they were anchored to wall studs to hang heavy pictures. They also testified the house was left spotless.
The photos in defendants' exhibit "O" show that the stove and refrigeratior were not left in the pristine condition proffered by the plaintiffs. The level of residue, however, was no more than any landlord should expect. While there are scratches on the floor in other pictures, the conditions do not justify the extensive repairs sought by the defendants(defendants' exhibit "P").
The court finds merit in the arguments of the plaintiffs regarding the size of the picture hangers. While other commercial heavy duty picture hangers may have been available, the court does not find their choice of nails instead to have been unreasonable. The court also determines that the level of cleaning required once they departed was neither excessive nor should it have been unexpected. The same can be said for any marks on the floor. Rental property is a depreciable asset precisely because residential use takes a toll on the pristine beauty of newly finished surfaces. The only work that the court finds should not have been foreseen by the landlords as part of any tenancy was that necessitated by their failure to address the moisture issue. Thus, they cannot recover from the security deposit for fixing walls and trim damaged by that condition. Lastly, as noted earlier, the court views the Koi pond as a wash for both parties. While the plaintiffs cannot recover for its installation since it was only for their benefit, the court finds that the defendants cannot recover because it doesn't appear to have caused any substantial disruption to the rustic ravine behind the house. Accordingly, the court finds entirely against the defendants on their second counterclaim, but will allow the security deposit to be applied to any outstanding rent that may be owed for failure to pay rent pursuant to the lease.
The Plaintiffs' Claim for Consequential Damages
The last remaining issue is the plaintiffs' demand for payment of moving expenses ($1,000) and the additional five-hundred dollars a month they were required to pay as rent for the house they moved in on April 1st. The court declines to saddle the defendants with financial responsibility for those choices made by the plaintiffs. Since this action was brought in City Court and not in Irondequoit where this house was rented and where a prior eviction proceeding was apparently begun, this court has no "institutional memory" regarding the basis for the discontinuance of the summary landlord-tenant proceeding. It is clear to the court, however, that the plaintiffs had begun seriously thinking about moving as early as November and that they knew in January that the defendants were serious about wanting to receive the rent. Rather than pursuing a mutually agreeable solution with the defendants they chose to move out. No one should expect to live in a house by the lake for free. Given that the plaintiffs only paid pro-rated rent for part of August and lived in the house for an additional seven months, the court holds that assessment of consequential damages would be inappropriate and not in the furtherance of justice.
Accordingly, after due deliberation and careful consideration, it is hereby
HELD that the plaintiffs have established entitlement to an award of $ 5,632.50 on their first cause of action for breach of contract. And it is further
HELD that plaintiffs are not entitled to recover on their second cause as they have not demonstrated fraud on the part of the defendants. And it is further
HELD that the plaintiffs have shown they are entitled to recover $ 1,140 on their third cause of action premised upon unjust enrichment. And it is further
HELD that the defendants are entitled an award of $ 8,800 on their first counterclaim representing rent based upon the lease and "fair use and occupancy" of the premises by the plaintiffs. And it is further
HELD that the defendants are not entitled to recover on their second counterclaim for damage having failed to prove that any work on the house after the plaintiffs vacated was not the result of normal wear and tear or conditions which were already the defendant's responsibility to repair under the lease. And it is further
HELD that the full amount of the posted security deposit ($ 1,100) currently held by the defendants is available to offset any liability on the part of the plaintiffs. And it is further
HELD that both parties have prevailed substantially on the claims and counterclaims the court will not award attorneys fees for either party making each responsible for their own counsel's fees, costs and disbursements.
Therefore it is
ORDERED that the defendants are entitled to a judgment of $ 927.50 with statutory interest since April 1, 2006, to be paid by June 1, 2009. And it is further
ORDERED that the plaintiffs are jointly and severably liable for that sum. And it is further
ORDERED that filing of any judgment with City Court or the Monroe County Clerk is stayed until June 2, 2009 to give the plaintiffs the opportunity to pay the sum owed without a judgment being entered.
The foregoing constitutes the decision and order of the court.