Opinion
93620/08.
Decided on January 14, 2008.
ROBERT M. OLSHEVER, P.C., Attorney for Petitioner, BY: MARK GRODBERG, ESQ., New York, NY.
HAROLD HIRSCH S/H/A HAL HIRSH, RESPONDENT PRO SE, New York, NY.
BACKGROUND
This summary nonpayment proceeding was commenced by WINDEMERE CHATEAU, INC ("Petitioner") and seeks to recover possession of Apartment 8B, at 666 WEST END AVENUE, NEW YORK, NEW YORK, 10025 ("Subject Premises") based on the allegation that, HAROLD HIRSCH s/h/a HAL HIRSH ("Respondent") the hotel stabilized tenant of record, has failed to pay rent for the Subject Premises.
PROCEDURAL HISTORY
This proceeding first appeared on the court's calendar on December 3, 2008. On January 8, 2009, it was transferred to Part S for trial. The trial was conducted on January 8th and 9th 2009. The petition filed in this non-payment proceeding sought rent and additional rent for October and November 2008. Respondent asserted an answer, alleging that he had been improperly named in the petition, that there were conditions in the Subject Premises requiring repair and for which he was seeking a rent abatement.
At the commencement of the trial, Respondent made what the Court deemed an application for his abatement claim to be asserted, not only as a defense, but also as a counterclaim. The application was granted, on consent, based in part on the Court's finding that the counterclaim could only run back to the last stipulation of settlement entered between the parties on August 20, 2008.Petitioner moved, at the close of its case, to amend the petition through and including January 2009, which motion was granted by the Court, over Respondent's objection.
FINDINGS OF FACT CONCLUSIONS OF LAW
Petitioner is the owner of the subject building pursuant to a certified deed dated July 20, 1973 (Pet. Ex. "1"). The premises are validly registered with DHPD pursuant to a certified copy of the multiple dwelling registration dated March 4, 2008 (Pet. Ex. "2"). The legal regulated rent for the Subject Premises is $574.53 per month, pursuant to the rent registered with DHCR as of April 1, 2008 (Pet. Ex. "3"). Respondent has no written lease agreement, but took occupancy of apartment 12-K in the subject building pursuant to an initial rental application and tenant card executed on August 26, 1981 (Pet. Ex. "4"). Respondent moved to the Subject Premises on or about October 1, 1983, and the tenant card was amended to reflect said move.
Petitioner issued a three day demand for rent, on or about November 4, 2008. The demand was served by a licensed process server, by conspicuous place service, with service being complete on mailing on November 8, 2008. Respondent did not make payment pursuant to said demand, and on November 21, 2008, Respondent was personally served with the notice of petition and petition herein.
Petitioner, in addition to the monthly base rent of $574.53, seeks charges of $25.00 for the installation of a Carbon Monoxide Detector, and $31.19 per month for air conditioning charges. It is undisputed that on or about September 3, 2008, Petitioner installed a Carbon Monoxide Detector. This was done to correct a Class "B" violation No. 740286 issued on July 31, 2008, as part of the inspection ordered in Index No. 74901/08 (Resp. Ex."F"), a prior non-payment proceeding between the parties.
Petitioner offered no documentary evidence to support its claim for monthly electric charges of $31.19. Both parties acknowledged that Respondent was assessed and paid a monthly bill for air conditioning, and that electric was included in Respondent's monthly base rent. Additionally, the rent history indicates that a monthly amount for air conditioning electric charge was assessed and paid by Respondent for the period of January 1990 forward, although never at the amount sought in this proceeding (Pet. Ex. "5"). However, Petitioner offered no written agreement or other document, nor any other testimony, supporting its entitlement to said charge in this proceeding.
In order for the Court to determine whether Petitioner is entitled to the air conditioning charges, and at what applicable rate, the record would have to include evidence as to when the air conditioner was installed in the Subject Premises, and when the Petitioner began charging for same ( See eg DHCR Nineteenth Annual Update of Section B of Supplement No. 1 to Operational Bulletin 84-4). The record is insufficient for the Court to make a determination as to these issues.
At the close of Petitioner's prima facie case, Petitioner established that there was past due $2298.12 in base rent, for the months of October 2008 through January 2009, as well as $25.00 for the installation of the Carbon Monoxide Detector, totaling $2323.12 in arrears.
At the request of the parties, the Court takes judicial notice of the following previous summary proceedings between the parties: Index No. 74901/08, Index No. 62184/06, Index No. 52046/05, and HP Index No. 920/05. Additionally, offered into evidence from Index No 67266/04 (Pet. Ex. 9) was a June 17, 2004 stipulation of settlement in that proceeding.
In this proceeding, a court ordered inspection took place on December 16, 2008. Pursuant to said inspection, three class "A" violations and four class "B" violations were issued relative to the Subject Premises. None of the violations issued, were found to have been in existence in the previous proceeding, pursuant to the July 31, 2008 inspection report (Index No. 74901/08).
On August 20, 2008 the parties settled Index No 74901/08 pursuant to a written stipulation of settlement. The stipulation, without admission of liability, provided Respondent with a $300.00 rent "concession," in settlement of "all claims by and between the respective parties to date" (Pet. Ex. "13"). The stipulation further provided that the violations would be corrected between September 3, 2008 and September 8, 2008.
The stipulation did not provide for a specific remedy for Respondent, in the event the repairs were not completed. Petitioner credibly testified that it completed the work necessary to correct the violations issued July 31, 2008, on three consecutive days in September 2008. Respondent testified that the repairs were not completed. However, this testimony is contradicted by the inspection report in this proceeding, which did find new violations, but did not find any of the same violations that were found to exist on July 31, 2008.
It is undisputed that Respondent refused to allow Petitioner access in December 2008 to do any repairs, and that Petitioner requested access on at least two occasions, in said month in writing. Respondent in particular acknowledged receipt of, and offered into evidence, a letter dated December 4, 2008 from Petitioner requesting access on December 11 and December 12, 2008 to make repairs (Resp. Ex. "D"). Respondent's acknowledged failure to provide any access to Petitioner, from December 2008 through the trial herein, precludes an award of an abatement for said period ( 56 MacDougal St Co v Miller, NYLJ April 24, 1990, p. 22 at 3 [App. Term 1st Dept]).
Given the stipulation resolving all claims in August 2008, and the acknowledged lack of access from December 2008 forward, the only months for which Respondent could potentially assert an abatement claim are September through November 2008.
Petitioner alleges that Respondent should be precluded from receiving an abatement, because Respondent failed to establish written notice of the conditions found by the inspector, prior to the commencement of this proceeding. Respondent did not offer any evidence of written notice to Petitioner, or its attorneys, regarding a request for repairs after the work that was done in September 2008, but prior to the assertion of his answer in this proceeding. In determining whether a tenant has established an entitlement to a rent abatement, the tenant must establish that the landlord had actual or constructive notice of the conditions alleged to exist ( Vanderhoff v. Casler, 91 AD2d 49 [3rd Dept, 1983]; Moskowitz v. Jorden , 27 AD3d 305 [1st Dept, 2006]; 1050 Tenants Corp. v. Lapidus , 16 Misc 3d 70 [App. Term 1st Dept, 2007]; Jermaine LLC v. Boyd, 5 Misc 3d 131 [A][App Term 1st Dept, 2004]).
Petitioner offered into evidence two stipulations of settlement wherein Respondent specifically agreed that all future requests for repairs would be in writing, the June 17, 2004 stipulation in Index No. 67266/04 (Pet. Ex. "9"), and the August 20, 2008 stipulation in Index No. 74901/08 (Pet. Ex. "13").
Additionally, the Court in taking judicial notice of the aforementioned proceedings, notes that on at least two other occasions Respondent agreed, pursuant to court-ordered stipulations, that all future requests for repairs would be in writing. This occurred on March 28, 2005 in Index No. 52046/05, and on April 4, 2006 in Index No. 62184/06.
To the extent that Petitioner argues that Respondent's failure to provide Petitioner with written notice, in accordance with the stipulations, excuses entirely its obligation to perform the necessary work, or prevents the assertion of the abatement claim, the Court disagrees, and to the extent that the stipulations so provide, the Court finds them to be unenforceable. RPL 235-b, which legislatively establishes the implied warranty of habitability in written or oral rental agreements for residential property, specifically provides that "(a)ny 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" (RPL 235-b). In interpreting this statute, courts have held that agreements requiring that notice of conditions be in writing, in order to assert a claim under RPL 235-b, are invalid ( Vanderhoff v. Casler, 91 AD2d 49 [3rd Dept, 1983]; Moskowitz v. Jorden ,27 AD3d 305 [1st Dept, 2006]; Regency Joint Venture v. Goodman, NYLJ May 12, 1993, p. 30 at 2).
The only exception, found by an appellate court, appears to have been based on a finding that both parties to the agreement were "sophisticated" and represented by counsel, with a background of prolonged and at times frivolous litigation ( 1050 Tenants Corp. v. Lapidus , 16 Misc 3d 70 [App Term, 1st Dept 2007]). Respondent herein is pro se, and the Court does not find him to be "sophisticated" as that term is used in Lapidus, and thus holds the exception inapplicable to the case at bar. Therefor, had Respondent established notice, whether orally or in writing, the claim for an abatement would properly lie, notwithstanding the provisions of prior stipulations.
However, in light of the numerous stipulations wherein Respondent agreed that all notice of conditions requiring repair would be in writing, and given the long history of litigation between the parties, the Court finds Respondent's vague and unsupported testimony that he only mentioned the necessary repairs orally to Petitioner's agents to lack credibility, and insufficient to sustain his burden in establishing that Petitioner was on notice of the conditions found by the HPD inspector on December 16, 2008 ( 330 East 46th Street Associates LLC v. Greer, 5 Misc 3d 133 [A][App Term 1st Dept, 2004]).
Despite the lack of credible evidence given by Respondent at trial
regarding notice to Petitioner, the Court notes that it is undisputed that Petitioner and its agents were at the Subject Premises for three days in September 2008 to do work, much of which was done in the bathroom.
Respondent testified that the work done in the bathroom was not done in a professional manner. Respondent further testified that in the course of said work, Petitioner's agents damaged the bathroom door. The testimony regarding the damage done was undisputed at trial. A violation was placed by the inspector, for the damaged bathroom door, pursuant to the December 16, 2008 inspection. Petitioner through its agents was on notice of this condition, and it is undisputed that the condition was caused by Petitioner's agents.
Additionally a violation was placed relating to painting and plastering the east-west wall in the bathroom. Given that Petitioner had spent two days painting in the bathroom in September 2008, Petitioner should have inspected and repaired any conditions relating to painting and plastering the bathroom at that time, whether or not there was a reported violation for the condition. Petitioner's witness seemed to suggest that while in the Subject Premises, in September 2008, Petitioner strictly limited itself to addressing the reported violations from the previous proceeding. One of the reported violations, in the previous proceeding, was for painting and plastering the north wall in the bathroom. The Court finds that had a professional job been done in painting and plastering the bathroom in September 2008, a violation for same would not have been found by the inspector some two months later.
Therefore, the Court finds that while Respondent failed to establish by a preponderance of the evidence that he put Petitioner on notice of any of the conditions that were found to constitute violations pursuant to the inspection of December 16, 2008, Petitioner had actual or constructive knowledge of the conditions resulting in violations for the bathroom door and for painting and plastering in the bathroom.
The Court concludes that Respondent is entitled to a five percent abatement for the months of September 2008 through November 2008, only for said conditions, as no notice was established as to the other conditions for which the inspector found violations.
The Court directs that Petitioner correct all violations found pursuant to the December 2008 inspection, as required by law, and orders Respondent to provide access for said repairs February 2nd through February 5, 2009 from 10:00 a.m. to 4 p.m.
Finally, other than the reported violations, Respondent's primary claim for an abatement is based on complaints regarding what he alleges to be the one hundred year old electrical wiring in the Subject Premises. The Court notes that while Respondent has repeatedly asserted this as a violation in inspection requests, it has never been found to be a violation by HPD, despite numerous inspections by various HPD inspectors over the course of many summary proceedings between the parties.
Additionally, Petitioner offered the testimony of its electrician Leonard Ruchevsky at trial. Mr. Ruchevsky credibly testified that he performed work at the Subject Premises in 1999 and 2005. In 1999, Mr. Ruchevskly testified that he replaced the existing fuse box in the Subject Premises, with a new circuit breaker panel, and that he installed new feeders. In 2005 Mr. Ruchevsky testified that he increased the feeder to the circuit breaker in the Subject Premises allowing for energy of "30-amp at 208-volts" (Pet. Exs. "22" "24"). Mr. Ruchevsky testified that this supplied more than sufficient electricity for the average use of a studio apartment. Mr. Ruchevsky also testified that Respondent had "hard-wired" an extension cord into one of the outlets at the Subject Premises, which he stated caused a dangerous condition and could lead to power outages, and which was addressed by Mr. Ruchevsky in his repairs to the Subject Premises. Mr. Ruchevsky acknowledged that he had not been at the Subject Premises since 2005.
Respondent testified that there was insufficient electrical power in the Subject Premises, and that this caused repeated black outs, which required the circuit breaker to be switched in order to restore electricity. Respondent testified that these repeated blackouts were caused by the age of the wiring. Petitioner and its witness asserted that the wiring was in good working order, and implied that Respondent's unreasonable and/or improper usage was overloading the electrical capacity of the Subject Premises.
The Subject Premises is a one room studio apartment. Respondent testified that he had thousands of dollars of equipment at the Subject Premises, including but not limited to a "recording studio" and two four hundred pound speakers, as well as other musical equipment.
The Court finds that the weight of the credible evidence offered at trial does not indicate that Petitioner is at fault in maintaining or providing electricity to the Subject Premises, or in its maintenance of the electrical wiring. Therefor the Court finds no abatement is warranted, nor further repairs necessary, as far as this generally alleged condition is concerned.
CONCLUSION
Based on the foregoing, the Court finds that Respondent is entitled to a rent abatement for September 2008 through November 2008 in the amount of $86.19. Petitioner is entitled to a final judgment of money and possession in the amount of $2236.93 for base rent due from October 2008 through January 2009, plus the installation of the carbon monoxide detector. Issuance of the warrant of eviction is stayed five days for payment. Petitioner's claim for air conditioning charges for said months is dismissed without prejudice. Petitioner is directed to correct all outstanding violations and Respondent directed to provide access for same as provided above.
This constitutes the decision and order of this Court.