Opinion
20010376
02-26-2020
James KARDIAS and Virginia Kardias, Petitioners, v. Luis CABALLERO and Kristen Caballero, Respondents.
Craig T. Bumgarner, Esq., Attorney for Petitioners, 1118 Route 52, Suite F, Carmel, New York 10512 Luis and Kristen Caballero, Respondents, pro se
Craig T. Bumgarner, Esq., Attorney for Petitioners, 1118 Route 52, Suite F, Carmel, New York 10512
Luis and Kristen Caballero, Respondents, pro se
Brian M. Rudner, J.
In this summary proceeding, Petitioners James and Virginia Kardias (hereinafter "Petitioners") have petitioned the Court for the following relief related to the premises located at 4071 Route 52, Apartment B, Holmes, New York ("the Premises"): (i) a judgment of possession; (ii) a warrant of eviction removing Respondents Luis and Kristen Caballero (hereinafter "Respondents"; when referring individually to Respondent Luis Caballero, the Court shall refer to him as "Caballero") from the Premises; and (iii) judgment against Respondents in the amount of $8,300.00 representing unpaid rent. Respondents opposed the requested relief and sought the following relief by way of counterclaim: (i) $5,071.94 in damages to appliances; (ii) compensation for services rendered by Respondent Luis Caballero, valued by Respondents at $4,400.00; and (iii) a refund of all rent paid by Respondents in 2019, totaling $11,600.00.
The petition, which was filed with this Court on January 17, 2020, seeks $7,200.00 in unpaid rent. At the hearing, Petitioner's counsel made an oral application to amend the petition to include unpaid rent for February. The Court granted this application with the consent of Respondents.
The Court held a hearing on the petition and counterclaims on February 12, 2020. Walter Leverich ("Leverich"), Petitioners' step-son and property manager for the Premises, testified for Petitioner. Respondent Luis Caballero testified for Respondents. Respondents also called Kelly Hegarty, an employee of the Dutchess County Department of Health, to testify on their behalf. Respondents brought an additional witness, Leanne Woodbury, to testify in support of the counterclaims. According to Respondents, Ms. Woodbury was a former tenant in the building and could offer testimony to corroborate their claims regarding the uninhabitable condition of the Premises. Despite being provided the opportunity to call Ms. Woodbury and her being present in the courthouse, Respondents elected not to put Ms. Woodbury on the stand. Each party also introduced photographs in support of their respective claims and defenses. The Court makes the following findings of fact based upon the competent and reliable evidence presented at the hearing:
FINDINGS OF FACT
Leverich described the building located at 4071 Route 52, Holmes, New York as containing four apartments (A — D). The building is owned by Petitioners, who have authorized him to care for, and manage, the building. Leverich testified that Respondents entered into a written lease to rent the Premises approximately five (5) years ago. The lease was for a one-year term with monthly rent of $1,100.00. After the expiration of the lease term, Respondents (and their four children) continued to rent the Premises on a month-to-month basis. During the five-plus years that Respondents have resided in the Premises, the monthly rent has never increased.
According to Leverich, the last month for which Respondents paid the full $1,100.00 rent was June of 2019. At some point subsequent to July 1, 2019, and prior to the filing of the instant petition, Respondents paid $500 to Leverich, which he testified was applied to the rent owed for July of 2019. The total rent owed, accounting for the $500 credit against July rent, is $8,300.00. Respondents provided no competent evidence or testimony to rebut Petitioners' claim of unpaid rent . To the contrary, Caballero admitted that Respondents were behind in their rent payments but that he had performed services for Petitioners' benefit that should offset the rent owed. On cross-examination by Caballero, Leverich denied that he had agreed to accept in-kind services from Caballero in exchange for a reduction in unpaid rent.
There was sharp dispute between Leverich and Respondent Luis Caballero regarding when the last rent payment was made. Balancing the competing testimony on the subject, the Court finds that Respondents did provide a partial rent payment ($500.00) in November of 2019, which Respondent Luis Caballero mistakenly believed would apply to their November rent. Leverich testified that although he received the partial rent payment in November, it was applied to the earliest month for which rent was outstanding (July of 2019).
Caballero is a security guard by trade but has not worked since late 2018 due to an on-the-job injury suffered during a slip and fall. He has been receiving workers' compensation payments since January of 2019. According to Caballero, it was for these reasons that he approached Leverich in late 2018 with a proposal to perform services for Leverich in and around the building in exchange for a reduction in Respondents' unpaid rent. Leverich denies agreeing to such an arrangement, although he admitted that Caballero would occasionally assist other tenants with problems in their apartments. Caballero admitted on cross-examination that he was not permitted to perform this type of manual labor while receiving payments from the workers' compensation system.
Caballero testified that he provided assistance to other tenants in the building: fixing a leaky drain in Apartment A; helping the tenant in Apartment D with her refrigerator temperature; vacuuming up water leaks for the tenant in Apartment C. Caballero insisted he did these things at Leverich's request; Leverich denies making any such requests. Caballero claimed that he replaced, at his own cost, three "ferncos" (a plumbing fixture) within a 24-hour period for the tenant in Apartment D. He claims that Leverich requested he do this via text message. Leverich denies such a request and Caballero did not produce a copy of the text message . Caballero claimed he did more than five hours of work during 2019 for other tenants in the building, at Leverich's request. When asked on cross-examination about the value of the work he allegedly performed, Caballero was unable to assign a dollar value to the work he claimed to have performed.
Caballero testified that his correspondence with Leverich via text message was "infrequent." Nevertheless, Caballero did submit a copy of text messages [ see Exhibit D] with Leverich as purported proof of his 2019 rent payments. There were several occasions throughout his testimony where he indicated communications occurred via text message but did not produce a copy of the message(s). On several occasions, Caballero attempted to retrieve papers from a large folder he had with him but, despite being provided ample time by the Court, never produced the documents for which he claimed to be looking.
Caballero testified that Respondents began noticing a rodent problem at the Premises some time in 2018. He claimed that he and other tenants notified Leverich of the problem when it arose but did not produce any text messages, emails, or other documentary proof supporting the claim that Leverich had been notified in 2018. Caballero introduced several photographs in support of his claim of a rodent infestation [ see Resp. Exhibits A, E-L]. Exhibit A depicts a rather large, dead rodent. However, on cross-examination, Caballero admitted that Exhibit A was taken not in the Premises but inside of one of the downstairs apartments. The remainder of Respondents' photographic exhibits purport to depict rodent drippings on or near appliances in the Premises on February 12, 2020. Caballero described persistent rodent droppings on and/or in his refrigerator, dishwasher, and stove. As a result, Respondents claim they are no longer able to use the dishwasher or the oven.
In November of 2019, Respondents placed a call to the Dutchess County Department of Health ("DOH"). There was some dispute between Leverich and Caballero as to the reason for and timing of the call. Leverich asserts that after he asked Caballero when he would receive the rent he was owed, Caballero got angry and exclaimed that he would be notifying DOH. Caballero claims that no such argument about the rent took place and that he called DOH because Respondents were concerned about the rodent infestation. DOH Officer Kelly Hegarty conducted an inspection of the Premises on December 5, 2019. She described the Premises as "normal" with some rodent droppings behind the stove. On cross-examination she stated that rodents were a common problem in buildings in the Hudson Valley. Ms. Hegarty testified that while she had initially informed Caballero that an exterminator would be needed, upon further discussion with her supervisor it was determined that bait stations and traps would be sufficient to remediate the problem. DOH sent correspondence to Leverich advising him of the requirement that he utilize bait stations and traps to address the rodent situation in the Premises. According to Ms. Hegarty, Leverich complied with this request and DOH received no further complaints.
Respondents also allege that the tenants in Apartment A were engaged in the sale of illegal drugs. Caballero claimed that on several occasions he witnessed the tenants sell marijuana out of a car in the parking lot adjacent to the building. Caballero insisted that on one occasion he saw, while inside the Premises looking out of a window, the Apartment A tenant hand marijuana to another person in exchange for money. When asked how he was so certain that the object sold was marijuana, Caballero stated that it was because of his training as a security guard. When pressed as to the extent of his training, or how his security guard training enabled him to identify small objects from a distance, Caballero simply stated that he worked as a security officer for a housing authority in Greenburgh, New York, in 2018. He never explained what, if any, training he received during that employment; what, or how many, observations of illicit narcotics transactions he observed during that employment; or in what way he was otherwise qualified to conclude that he had witnessed a drug transaction. Caballero claimed that Respondents notified Leverich in November of 2019 of the illegal activity but that he took no action. Respondents notified the Dutchess County Drug Task Force of the alleged narcotics sales at the location; as of the date of the hearing, no arrests had been made .
Respondents subpoenaed Detective Ryan Angioletti of the Dutchess County Drug Task Force. Detective Angioletti appeared in court in response to the subpoena. When the Court asked Respondents for an offer of proof as to Detective Angioletti's testimony, Respondents were unable to provide the Court with any non-cumulative testimony that he would provide. As a result, the Court denied Respondents' application to call Detective Angioletti. The Court, with the consent of the parties, did allow Detective Angioletti to state on the record that no arrests had been made at the Premises as a result of Respondents' notification to the Task Force.
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DISCUSSION
The Court credits the testimony of Leverich and finds that Respondents owe unpaid rent in the amount of $8,300.00. Leverich testified credibly that Respondents had not paid a full month's rent since June of 2019. Respondents offered no evidence to dispute the amount owed. Weighing the conflicting testimony of Leverich and Caballero, and comparing the testimony to the objective evidence in the record, the Court finds that there was no agreement between the two to offset unpaid rent with Caballero's services. First, Respondents presented no proof — not even a text message — to corroborate the claim of an agreement. Second, there is no credible proof that the services provided by Caballero (assuming they were performed as he claimed) were done at the behest or request of Leverich. Finally, even if the Court credited Caballero's claimed agreement, Caballero has not provided the Court with any metric by which to value his services in order to determine an appropriate credit against rent owed.
Respondents have asserted a defense and counter-claim for damages sounding in breach of the implied warranty of habitability. Every written or oral lease for residential purposes is deemed to contain an implied warranty of habitability to the effect that the premises are fit for human habitation, that the premises are fit for the use reasonably intended by the parties, and that the occupants will not be subject to conditions that are dangerous, hazardous or detrimental to life, health, or safety [ see Real Property Law § 235-b (1) ].
This implied warranty was not intended to make landlords "guarantor[s] of every amenity customarily rendered in the landlord-tenant relationship" or "absolute insurers of services which do not affect habitability" [ Park West Management Corp. v. Mitchell , 47 NY2d 316, 327 (1979), cert denied 444 US 992 (1979) ]. A residential landlord, however, warrants "that there are no conditions that materially affect the health and safety of tenants [such as] insect or rodent infestation"; if there are such conditions, "in the eyes of a reasonable person [then], a breach of the implied warranty of habitability has occurred" [ Felice v. Warf , 65 Misc 3d 305, 315 (City Court, City of Middletown, 2019), quoting Park West Management Corp. , 47 NY2d at 328 ]. "In ascertaining damages, the finder of fact must weigh the severity of the violation and duration of the conditions giving rise to the breach as well as the effectiveness of steps taken by the landlord to abate those conditions" [ Park West Management Corp. , 47 NY2d at 329 ].
Based upon the record before it, the Court finds that there was a breach of the implied warranty of habitability due to the presence of rodents in the Premises [ see Park West Management Corp. , 47 NY2d at 328 ; see also Felice v. Warf , 65 Misc 3d at 315 ; Dunbar Owner LLC v. Jones , 54 Misc 3d 134(A) (App Term, 1st Dept. 2017) ; Port Chester Housing Authority v. Mobley , 6 Misc 3d 32 (App Term, 9th & 10th Jud Dists, 2004) ]. However, in assessing the appropriate amount of damages, the Court finds that this was a minor violation, occurring over a relatively short period of time, which Leverich addressed expeditiously. The credible evidence points to Leverich not being aware of the rodent problem until after the DOH inspection on December 5, 2019. Based upon the testimony of Leverich and Ms. Hegarty, Leverich immediately took steps to remediate the rodent problem by placing bait stations and traps. While the photographs submitted by Respondents showed what appeared to be rodent droppings behind their stove on February 12, 2020, the photographs do not corroborate the extent and severity of the infestation claimed by Respondents. Ms. Hegarty described the Premises as "normal" during her inspection. Her testimony did not indicate to the Court that there was a serious rodent infestation in the Premises. Respondents' February 12th photographs strike the Court as closer to the situation described by Ms. Hegarty than the infestation claimed by Respondents.
Based upon the entirety of the record before it, and cognizant of the fact that damages in breach of warranty of habitability cases are often not susceptible to precise determination [ Park West Management Corp. , 47 NY2d at 329 ], the Court awards a five percent (5%) rent abatement for December, 2019, and January, 2020. As such, the $1,100.00 rent owed for December, 2019, and January, 2020 is reduced by 5%, for a total rent abatement of $110.00.
However, the Court finds no merit to Respondents' claim regarding illegal narcotics activity in Apartment A. At best, Caballero's testimony in this area was vague and conclusory; at worst, it was incredible. Caballero insisted that on a certain occasion he saw the tenant from Apartment A hand marijuana — not a small object , but marijuana — to another person in exchange for money. The Court provided Caballero the opportunity to clarify his testimony to state that he only saw a small object, as opposed to marijuana specifically , but he would not relent. Given Caballero's vantage point at the time of the claimed observation — inside the Premises, looking out a window to the parking lot — his lack of training in the observation and detection of narcotics transactions, and the absence of a detailed description of what he saw (as opposed to conclusions about what he thinks he saw), the Court finds his testimony to be incredible and gives it no weight. Had Caballero stated that he suspected it was marijuana but only saw a small object exchanged, his testimony would have been more believable.
Other than Caballero's testimony, Respondents presented no evidence to establish illegal narcotics activity in Apartment A or that Leverich had been made aware of same. The only other evidence in the record is Detective Angioletti's statement that no arrests had been made at the Premises. Based upon the foregoing, the Court finds that Respondents have failed to meet their burden of establishing a breach of the implied warranty of habitability based upon illegal narcotics activity.
Finally, although the Court found a breach of the implied warranty of habitability due to the presence of rodents in the Premises, consequential damages, such as for property damage, are not recoverable upon a breach of that warranty [ see Collens v. Sayegh , 64 Misc 3d 145(A), 2019 NY Slip Op. 51301(U) (App Term, 2d Dept. 2019) ]. As such, the Court finds in favor of Petitioners on Respondents' counter-claim for damage to their property and appliances.
Based upon the foregoing, it is hereby
ORDERED, that Petitioner is awarded judgment of possession. The Court has signed a warrant of eviction, as modified, contemporaneously herewith and, in an exercise of the Court's discretion, the execution of the warrant shall be stayed for a period of fourteen (14) days from the date of this Decision and Order; and it is further
ORDERED, that Petitioner shall have judgment against Respondents in the amount of $8,190.00, reflecting unpaid rent of $8,300.00 minus a 5% rent abatement for December of 2019 and January of 2020 (a total abatement of $110.00). The Court has signed a judgment, as modified, contemporaneously herewith; and it is further
ORDERED, that Petitioners shall have judgment against Respondents, dismissing the counter-claim for damages to property and appliances claimed as a result of a breach of the implied warranty of habitability.
All other relief not specifically addressed herein is denied. The foregoing constitutes the Decision and Order of the Court.