Opinion
No. SC22-0068
12-22-2022
GLENN B. ALLYN, Plaintiff, v. 131-151 PURCHASE STREET INVESTOR 1, LLC and AMBER MANAGEMENT, INC., Defendants.
Plaintiff Pro Se Defendants by Carl Finger, Esq., Finger & Finger.
Unpublished Opinion
Plaintiff Pro Se Defendants by Carl Finger, Esq., Finger & Finger.
DECISION AND ORDER
JOSEPH L. LATWIN Rye City Court Judge.
This is a small claims action by the assignee ("Allyn") of the rights of a former tenant Lukic ("tenant") for breach of the warranty of habitability against defendant 131-151 Purchase Street Investor 1, LLC ("Landlord") and defendant Amber Management, Inc. ("managing agent"), the managing agent of the Landlord. Lukic complains of two things she claims violated the warranty of habitability: (1) upstairs neighbor's heavy footsteps at night; (2) steam radiators banging when charged with steam at night. She claims this prevented her from having ten hours of uninterrupted sleep required for her job as a commercial pilot. These rented premises, visible from the Court, consist of about 100 units in a four stories tall "U" shaped building built in 1925 surrounding a garden courtyard.
First, some procedural background and issues. This is not the first time this case has come before the Court. Tenant filed a small claims action against landlord and the managing agent on December 26, 2019 (SC 19-131). At the initial conference, the case was dismissed against the managing agent and a trial was scheduled for April 1, 2019. On the scheduled trial date, tenant failed to appear and the case was dismissed and landlord's counterclaim was withdrawn without prejudice. On May 5, 2022, tenant filed another small claims action, (SC 22-042) for breach of the warranty of habitability and seeking return of the security deposit. After conference, the case was set for trial on July 27, 2022. On that scheduled trial date, tenant appeared with Allyn who sought to represent tenant and to file an amended complaint with Allyn as the plaintiff and to accordingly change the caption. The Court, concerned that the change of plaintiff might be a subterfuge to allow a non-lawyer to represent a party, denied the "at trial" motion without prejudice. Thereafter tenant withdrew the action. This small claims action filed July 27, 2022, followed. The Court set a motion schedule, but no motion was filed. A trial date was set and a trial held.
To confirm and compound the Court's concerns, it turns out that Allyn is a disbarred lawyer in New York (In re Allyn, 75 A.D.3d 87, 899 N.Y.S.2d 367 [2d Dept 2010]), New Jersey (Supreme Court Disciplinary Review Board Docket DRB-12-394), Pennsylvania, Colorado, and Connecticut.
At the trial, the tenant testified and plaintiff introduced into evidence the tenant's lease (Pl. Ex. 1), the lease of the subsequent tenant (Pl. Ex. 2), email correspondence (Pl. Ex. 3), and the assignment of the claim from tenant to plaintiff (Pl. Ex. 4).
Real Property Law § 235-b (1) says,
In 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.
Under RPL § 235-b, it is the landlord or lessor who is deemed to covenant the habitability of the leased premises. Here, the landlord or lessor is not the only defendant. The managing agent is also named as a defendant but is not named in the lease (Pl. Ex.1) as landlord or lessor. The managing agent is not a party to any covenant of habitability for the premises. Accordingly, the action for breach of warranty of habitability against the managing agent is dismissed.
The lease (Pl. Ex.1) names defendant landlord plus 131-151 Purchase Street Investor 2 LLC, 131-151 Purchase Street Investor 3 LLC, and 131-151
Purchase Street Investor 4 LLC, as Tenants in Common, as the Owner. None of these other entities is named as a party in this action. Similarly, the lease names not only tenant Lukic as a renter, but Robert Beebe as well. No testimony mentioned Mr. Beebe. No assignment of Mr. Beebe's interest in the security deposit was offered nor any evidence as to any effect of the complained action on Mr. Beebe.
The warranty of habitability was not legislatively engrafted into residential leases for the purpose of rendering landlords absolute insurers of services which do not affect habitability. Park W. Mgt. Corp. v Mitchell, 47 N.Y.2d 316, 327 cert. denied, 444 U.S. 992 [1979]. "Absent an express agreement to the contrary, a landlord is not required to ensure that the premises are in perfect or even aesthetically pleasing condition." Id. at 328.
In 2 NY Landlord & Tenant Incl. Summary Proc. § 18:6 (5th ed.) details instances of the common breach of warranty issues: Air conditioning complaints; Elevator complaints; Heat and hot water complaints; Light and ventilation complaints; Odor complaints; Painting complaints; Plumbing complaints (leaks, flooding); Stove complaints; & Vermin complaints. Noise complaints are not among them.
Noise from neighbors can conceivably entitle a tenant to a rent abatement. Nostrand Gardens Co-Op v. Howard, 221 A.D.2d 637, 634 N.Y.S.2d 505 [2d Dept. 1995]. However, a resident of a large city cannot reasonably expect to be "surrounded by the stillness which prevails in a rural district." Carroll v. Radoniqi, 2012 NY Misc. LEXIS 4423 (S.Ct. NY Co. 2012)(Gische, J.), aff'd, 105 A.D.3d 493, 494, 963 N.Y.S.2d 97 (1st Dept. 2013). To be actionable, noise must be "so excessive as to deprive a tenant of the essential functions that a residence is supposed to provide. Sounds from a neighboring apartment do not breach the warranty of habitability when they are incidental to normal occupancy, such as . . . heavy footsteps, banging, Kaniklidis v. 235 Lincoln Place Hous. Corp., 305 A.D.2d 546, 547, 759 N.Y.S.2d 389 [2nd Dept. 2003], and children "stomping." O'Hara v. Bd. of Dirs. of the Park Ave. & Seventy-Seventh St. Corp., 206 A.D.3d 476 (1st Dept. 2022). 3021 Ave. I LLC v Starker, 76 Misc.3d 1222(A) [Civ Ct, Kings County 2022]. Here tenant's testimony was limited to describing the type of noise (footsteps and banging radiator) occurring at night. There was no evidence of the precise dates, times, duration, pitch, timbre, or intensity of the complained of noises.
Likewise, noises from heating facilities are to be expected. Noise and vibration generated by a fuel booster located directly beneath the plaintiff's apartment did not constitute a breach of the warranty of habitability. Protano v 16 N. Chatsworth Ave. Corp., 272 A.D.2d 597, 597, 709 N.Y.S.2d 415 [2d Dept 2000]. But see, Sussex Apartments, LLC v Choi, Misc3d, 2003 NY Slip Op 51126(U) [App Term 2d Dept 2003] (mental and physical problems suffered because of the noises emanating from the heating system entitled tenant to 5% abatement).
Even if the conditions at the apartment created disruptions to their daily lives, the tenant must show, prima facie, that the conditions complained of were "detrimental to [their] li[ves], health or safety within the meaning of the statute. Bedke v Chelsea Gardens Owners Corp., 27 Misc.3d 1212(A), 910 N.Y.S.2d 403 [Sup Ct, New York County 2010]. A "reasonable person" standard is used. Park W. Mgt. Corp. v Mitchell, supra at 328 [1979] ("If, in the eyes of a reasonable person, defects in the dwelling deprive the tenant of those essential functions which a residence is expected to provide, a breach of the implied warrant of habitability has occurred.") A two-step inquiry is needed. First, would a reasonable person deem the complained of conditions "essential functions". Second, are the conditions detrimental to life, health, or safety.
Apartment-house living in a metropolitan area is attended with certain well-known inconveniences and discomforts. The peace and quiet of a rural estate or the sylvan silence of a mountain lodge cannot be expected in a multiple dwelling. Mutual forbearance and the golden rule should, but unfortunately in many cases do not, act as the yardstick for the conduct of tenants in apartment houses. Reasonable consideration of the comforts of neighbors should be exercised by the occupants. Twin Elm Mgt. Corp. v Banks, 181 Misc. 96, 97, 46 N.Y.S.2d 952 [Mun Ct Queens County 1943](dull, monotonous, repetitious playing of scales on a piano by a young novice piano student and thumping sounds that continued each day for a twelve-hour period throughout the day did not constitute a nuisance.). Getty v. Tolentino, Misc.3d . 2021 SlipOp 31974 [Rye City Ct 2021]. Lukic should have had no reasonable expectation of a noiseless environment since the premises she rented are located across the street from busy 24 hours a day Interstate 95, the tracks of Metro North Railroad, and are next to an autobody repair shop. Unless she lived on the uppermost floor, footsteps from neighbors above are not unusual noises.
The specific complaints were that tenant came home late, went to bed and heard heavy footsteps from the above floor tenant's bedroom during the night, on one night at 1 a.m., 3 a.m., & 5 a.m. (Pl. Ex. 4 at 9/17/19 email) and the steam radiators made noises. Tenant testified that these footsteps occurred 2 to 3 times per month. There was no testimony about how often the steam radiator in the bedroom made noise, but when it did, tenant slept on her sofa. A reasonable person would deem absence of continuous and ongoing noise an "essential function" of the tenancy. However, occasional and intermittent noise might not rise to that level. A reasonable apartment dweller would consider hearing the footsteps of an upstairs neighbor a necessary inconvenience incident to communal living. Similarly, anyone living with steam radiators should know that when they are charged, the steam heats the cold pipes and expands them causing clanging noises. Tenant must have known there were steam radiators in the apartment as they are visible and at some point, the apartment was heated. Once the radiator is heated, it won't clang again until it is cold and new steam is charged into it causing new expansion.
Tenant did not testify as to any detriment to life, health, or safety caused by the footsteps or the radiator noises, except for being awoken in the night. There was no testimony she couldn't return to sleep. Indeed, tenant testified she moved and slept on her sofa.
While tenant did not articulate a claim of constructive eviction, it would be of limited benefit. To establish constructive eviction, a tenant need not prove physical expulsion, but must prove that the landlord's wrongful acts substantially and materially deprive the tenant of the beneficial use and enjoyment of the premises. Pacific Coast Silks, LLC v. 247 Realty, LLC, 76 A.D.3d 167 [1st Dept. 2010]; Barash v. Pennsylvania Term. Real Estate Corp., 26 N.Y.2d 77 [1970]. Here, the acts complained of were not the landlord's wrongful acts but rather the upstairs neighbor's footsteps. The tenant must abandon possession to claim that there was an eviction. A constructive eviction may be partial rather than total, in which case the tenant must have abandoned only the portion of the premises affected. See Minjak Co. v. Randolph, 140 A.D.2d 245, 528 N.Y.S.2d 554 [1st Dept 1988]. Therefore, allegations of noise are only sufficient to state a claim for breach of the covenant of quiet enjoyment, when there are also allegations that the tenant has abandoned at least a portion of the apartment. Cent. Blvd. Bldg. Corp. v Purville, 63 Misc.3d 1201(A, 114 N.Y.S.3d 189 [Mount Vernon City Ct 2019]. Here, the tenant, on the nights of the claimed noise, went to sleep on the sofa. Thus, at best, on those few nights abandoned only the bedroom - an unspecified portion of the premises.
Her complaints did not relate to her life, health, or safety, but rather to the sleep requirements of her employment as a pilot. Tenant's arguments that passengers life, health or safety were at risk are inapposite since if tenant failed to meet the sleep requirements, she was duty bound not to fly and no one, neither herself nor her passengers, would be at risk.
A residential tenant also may recover the damages sustained as a result of the landlord's breach of the warranty of habitability either by affirmative action therefor, or by counterclaim in an action to recover the rent. Park W. Mgt. Corp. v Mitchell, supra. To prove a claim for breach of the warranty of habitability, a plaintiff must show the extensiveness of the breach, the manner in which it affected the health, welfare or safety of the tenants, and the measures taken by the landlord to alleviate the violation. Diamond v New York City Hous. Auth., 179 A.D.3d 525, 527, 118 N.Y.S.3d 77 [1st Dept 2020].
Informative is Eastside Exhibition Corp. v 210 E. 86th St. Corp., 18 N.Y.3d 617, 622, 942 N.Y.S.2d 19 [2012] where the Court of Appeals questioned "whether there can be an intrusion on the demised premises that is of such trifling amount that imposition of the draconian remedy of total rent abatement is unjustified." Judge Ciparick found
For an intrusion to be considered an actual partial eviction it must interfere in some, more than trivial, manner with the tenant's use and enjoyment of the premises. That a partial eviction must intrude on the enjoyment of the demised premises was implicated early on . . . where the court noted that the tenant, having retained some portion of the premises, nonetheless was not required to pay for the part of the premises retained because there existed "such a disturbance, such an injury to its beneficial enjoyment, such a diminution of the consideration upon which the contract is founded, that the law refuses its aid to coerce the payment of any rent". Similarly, . . . we stated that "there must be an entry and expulsion of the tenant by the landlord, or some deliberate disturbance of the possession depriving the tenant of the beneficial enjoyment of the demised premises, to operate a suspension or extinguishment of the rent" (citations omitted).
Here, according to tenant's testimony, 2 or 3 times a month she left the bedroom to sleep on the sofa due to the footsteps of the upstairs neighbor and the clang of the steam radiator. These noise issues could have been easily mitigated with the purchase and use of earplug, readily available for less than a dollar. Similar to Eastside Exhibition, the Court finds the tenant's complaints were merely a trivial interference with her use and enjoyment of the premises, de minimis and warranting no relief.
The proper measure of damages for a breach of the warranty is the difference between the fair market value of the premises if they had been as warranted, as measured by the rent reserved under the lease, and the value of the premises during the period of the breach. The lease rental is competent evidence of the apartment's value as warranted, and in the absence of other evidence is controlling. 111 E. 88th Partners v Simon, 106 Misc.2d 693, 695, 434 N.Y.S.2d 886 [Civ Ct New York County 1980], aff'd as mod, 127 Misc.2d 74, 489 N.Y.S.2d 139 [App Term 1st Dept 1985]. That was established in Pl. Ex. 1. There was no evidence as to the value of the premises or any portion of them during the period of the claimed breach.
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. Since both sides will ordinarily be intimately familiar with the conditions of the premises both before and after the breach, they are competent to give their opinion as to the diminution in value occasioned by the breach. Testimony as to the rent of the apartment, the defective conditions with their effect, and the exact period of the time they existed, are sufficient to enable a court to determine the damage to the tenant as a result. See, e.g., Bay Park One Co. v Crosby, 109 Misc.2d 47, 442 N.Y.S.2d 837 [App Term 2d Dept 1981].
Here, any steps to remedy the neighbor's footstep noise might have not been effective or timely. If there was a basis for the landlord to file a summary proceeding against the upstairs neighbor, it would have taken at least 69 days to 143 days to conclude - consisting of time for notice to terminate, time for service, the return date, time to answer or appear and the notice from the Marshal - as built into the RPAPL timetables. Assuming the complaints were severe enough to constitute a breach, tenant's first complaint about the noise was September 16, 2019. (Pl. Ex. 4). Tenant moved out of the premises on December 16, 2019. (Pl. Ex. 4). Tenant remained in the premises for 91 days during the claimed breach period. A new tenant was secured by landlord by February 15, 2020. (Pl. Ex. 2).
A landlord is not insulated from liability for breach of the warranty simply because damages are not susceptible to precise determination. Park West, supra; Goldner v. Doknovitch, N.Y.L.J. June 28, 1976, aff'd in part, 88 Misc.2d 88, 388 N.Y.S.2d 504, 507 (App.Term, 1st Dept. 1976); & Forest Hills No. 1 Co. v Schimmel, 110 Misc.2d 429, 436 [Civ Ct Queens County 1981]. Nevertheless, as aptly stated by Justice Sandler in Steinberg v Carreras, 74 Misc.2d 32, 38, 344 N.Y.S.2d 136 [Civ Ct New York County 1973], rev'd, 77 Misc.2d 774, 357 N.Y.S.2d 369 [App Term 1st Dept 1974]
The economic realities of proceedings involving residential tenants make it unlikely that such testimony [regarding the value of the unit after a breach] would be readily available to tenants in the usual case. Moreover, I seriously doubt that statistical information about the value of apartments operated in violation of law is available in a form that permits meaningful expert testimony. Under the circumstances presented, it is the clear responsibility of the Court to determine the value of the services of which the tenants were deprived and the extent and duration of the deprivation in relation to the worth of the entire apartment and form a practical judgment as to the amount by which the value of the apartment had been reduced.
Plaintiff bears the burden of proof of the defendant's liability and its own damages. Even in the relatively relaxed and informal atmosphere of a small claims action, the plaintiff bears the burden of establishing its case by a preponderance of the evidence. De Meo v Consolidated Edison Co. of N.Y., Inc.,32 Misc.3d 131(A), 934 N.Y.S.2d 33 [App.Term 2nd, 11th & 13th Jud Dists 2011]; Rodriguez v Mitch's Transmission, 32 Misc.3d 126(A), 932 N.Y.S.2d 762 [App.Term 9th & 10th Jud Dists 2011] & Naclerio v. Adjunct Faculty Assn., 1 Misc.3d 135[A], N.Y.S.2d 625 [App. Term, 9th & 10th Jud Dists 2003]. Here, the plaintiff has not sustained that burden since there was no proof of: what if any interest tenant had to any security deposit vis-à-vis Mr. Beebe; any wrongful act done by landlord; the precise dates, times, duration, pitch, timbre, or intensity of the complained of noises; how the complained of noises were detrimental to tenant's life, health or safety within the meaning of the statute; how often the steam radiator in the bedroom made noise; or the value of the premises or any portion of them during the period of the claimed breach. The court cannot guess as to the extent of damages. See, Murphy v. Lichtenberg-Robbins Buick, 102 Misc.2d 358, 424 N.Y.S.2d 809 [App. Term, 2nd & 11th Jud Dists 1978].
In providing the parties with substantial justice according to the rules and principles of substantive law (UCCA 1804, 1807; see Cosme v Bauer, 27 Misc.3d 130(A), 910 N.Y.S.2d 404 [App Term, 9th & 10th Jud Dists 2010]; Ross v Friedman, 269 A.D.2d 584, 707 N.Y.S.2d 114 [2nd Dept 2000]; & Williams v Roper, 269 A.D.2d 125 [1st Dept 2000]) and under a fair interpretation of the evidence (see WRG Acquisition XIII, LLC v. Strasser, 55 Misc.3d 129(A), 55 N.Y.S.3d 695 [App Term, 9th & 10th Jud Dists 2020] with this Court having had the opportunity to observe and evaluate the testimony and demeanor of the witnesses and to evaluate the credibility of the witnesses, (Trimble v Hughes, 67 Misc.3d 143(A) [App Term, 9th & 10th Jud Dists 2020]; Gupta v Janiesch, 67 Misc.3d 135(A) [App Term, 9th & 10th Jud Dists 2020] (see also, Vizzari v. State of New York, 184 A.D.2d 564 [2ndDept 1992]; Kincade v. Kincade, 178 A.D.2d 510, 511 [2nd Dept 1991]; & Rotem v. Hochberg, 28 Misc.3d 127(A), 957 N.Y.S.2d 639 [App Term, 9th & 10th Jud Dists, 2010]), the Court finds that plaintiff has not proven his claim.
Accordingly, it is, ORDERED and ADJUDGED that the defendant have judgment against the plaintiff dismissing the claim.
Appeals
--An appeal shall be taken by serving on the adverse party a notice of appeal and filing three copies of: (1) the Notice of Appeal with the order or judgment being appealed; (2) the Affidavit of Service; and (3) a Request for Appellate Term Action ("RATA") with the Rye City Court Clerk. The Notice of Appeal shall designate the party taking the appeal, the judgment or order or specific part of the judgment or order appealed from and the court to which the appeal is taken. CPLR' 5515.
--Pursuant to UCCA § 1701 "Appeals in civil causes shall be taken to" the appellate term of the supreme court, 9th Judicial District.
-- An appeal as of right from a judgment entered in a small claim or a commercial claim must be taken within thirty days of the following, whichever first occurs:
1. service by the court of a copy of the judgment appealed from upon the appellant.
2. service by a party of a copy of the judgment appealed from upon the appellant.
3. service by the appellant of a copy of the judgment appealed from upon a party. Where service as provided in paragraphs one through three of this subdivision is by mail, five days shall be added to the thirty-day period prescribed in this section. UCCA' 1703(b).
-- The party taking an appeal shall promptly arrange with the Clerk to engage a service to have the record transcribed. The cost of transcription shall be borne by the appellant. -- Pursuant to the Rules of the Appellate Term (Part 732), the Record must be perfected within 90 days of the filing of the Notice of Appeal with the Appellate Term.
Exhibits Exhibits will be held for 30 days by the Clerk. After that time, they may be destroyed, if not picked up or arrangements for their return are not made.