If the Sanitary Code did not abrogate the common law rule of independent covenants, it seems logical to conclude that remedial legislation designed to aid enforcement of the Code has not repealed the common law rule. For similar treatment of a New York rent withholding statute's impact on landlord-tenant common law, see Davar Holdings, Inc. v. Cohen, 255 App. Div. (N.Y.) 445, affd. 280 N.Y. 828; Matter of Himmel v. Chase Manhattan Bank, 47 Misc.2d (N.Y.) 93, 96; Matter of De Koven v. 780 West End Realty Co. 48 Misc.2d (N.Y.) 951; 176 East 123rd St. Corp. v. Flores, 65 Misc.2d (N.Y.) 130. Thus, we are confronted with a situation where the legislation's "establishment of policy carries significance beyond the particular scope of each of the statutes involved."
Because there is but a minimal threat of vacancies, the landlord has little incentive to voluntarily make repairs or ensure the performance of essential services (see Boston Housing Auth. v Hemingway, 363 Mass. 184, 197-198; Javins v First Nat. Realty Corp., 428 F.2d 1071, 1079-1081, supra). While it is true that many municipalities have enacted housing codes setting minimum safety and sanitation standards, historically those codes could be enforced only by municipal authorities (Davar Holdings v Cohen, 280 N.Y. 828, but see L 1977, ch 849, § 13). In short, until development of the warranty of habitability in residential leases, the contemporary tenant possessed few private remedies and little real power, under either the common law or modern housing codes, to compel his landlord to make necessary repairs or provide essential services.
See for example, New York Real Property Actions Law, McKinney Consol. Laws, C. 81, 769 et seq.; Cal.Civ. Code § 1942; N.Dak. Century Code § 47-16-13. Rubinger v. Del Monte, 217 N.Y.S.2d 792 (N.Y.Sup.Ct., 1961); Davar Holdings, Inc. v. Cohen, 255 App. Div. 445, 7 N.Y.S.2d 911 (1938), aff'd, 280 N.Y. 828, 21 N.E.2d 882; Metcalf v. Chiprin, 217 Cal.App.2d 305, 31 Cal.Rptr. 571 (1963). See also, Peters v. Kelly, 98 N.J. Super. 441, 237 A.2d 635 (1968).
Pursuant to Multiple Dwelling Law § 78, the owner of a multiple dwelling owes a nondelegable "duty to persons on its premises to maintain them in a reasonably safe condition" and is liable to anyone injured "even though the responsibility for maintenance has been transferred to another" (seeMas v. Two Bridges Assoc. , 75 N.Y.2d 680, 687–688, 555 N.Y.S.2d 669, 554 N.E.2d 1257 [1990] ). However, Multiple Dwelling Law § 78 does not entitle a tenant to make repairs "which he claims the statute requires the lessor to do, and to [sue] for the value of such work on the theory of breach of contract.... Even if the statutory duty could be said to have been imposed for the benefit of one in [tenant's] position, the tenant might waive same" ( Emigrant Indus. Sav. Bank v. One Hundred Eight W. Forty Ninth St. Corp. , 255 App.Div. 570, 576, 8 N.Y.S.2d 354 [1939], affd 280 N.Y. 791, 21 N.E.2d 620 [1939] ; seeDavar Holdings Inc. v. Cohen , 255 App.Div. 445, 7 N.Y.S.2d 911 [1938], affd 280 N.Y. 828, 21 N.E.2d 882 [1939] ; Garcia v. Freeland Realty, Inc. , 63 Misc.2d 937, 314 N.Y.S.2d 215 [Civ. Ct., N.Y. County 1970] ).
Per Curiam. Tenants are not entitled to recover for the plumbing and exterminating expenses which they voluntarily incurred ( Perlmutter v. Timely Toys, 8 A.D.2d 834; Davar Holdings v. Cohen, 255 App. Div. 445, affd. 280 N.Y. 828; Emigrant Ind. Sav. Bank v. 108 W. 49th St. Corp., 255 App. Div. 570). The final order should be unanimously modified upon the law and facts by dismissing tenants' counterclaim on the merits and increasing landlord's recovery to $333.52, with appropriate costs in the court below, and as so modified affirmed, without costs on this appeal.
Per Curiam. Tenant is not entitled to recover for the expense of the exterminator service which he voluntarily incurred ( Perlmutter v. Timely Toys, 8 A.D.2d 834; Davar Holdings v. Cohen, 255 App. Div. 445, affd. 280 N.Y. 828; Emigrant Ind. Sav. Bank v. 108 W. 49th St. Corp., 255 App. Div. 570). The final order should be unanimously modified upon the law and facts by increasing landlord's recovery to $63.67, with appropriate costs in the court below, and as so modified affirmed, without costs on this appeal to either party.
(Cf. Herring v. Slattery Bros., 291 N.Y. 794.) If such an obligation exists, however, it is imposed by statute, and not by the terms of any agreement between appellant and his tenant. ( Davar Holdings, Inc., v. Cohen, 255 App. Div. 445, affd. 280 N.Y. 828; Emigrant Ind. Sav. Bank v. 108 W. 49th St. Corp., 255 App. Div. 570, affd. 280 N.Y. 791. ) Nolan, P.J. Carswell, Johnston, Wenzel and MacCrate, JJ., concur.
But it would be impractical for this tenant to move out so that she could claim that she had been constructively evicted (see 2 Rasch, New York Landlord and Tenant [2d ed], §§ 920-947) because under present conditions it would be virtually impossible to find a similar dwelling at a similar rental in the vicinity. Neither could the tenant make the necessary repairs herself because the common law prohibits it (Altz v Leiberson, 233 N.Y. 16; Davar Holdings v Cohen, 255 App. Div. 445, mot. for rearg. den. 256 App. Div. 806, affd 280 N.Y. 828); and even if permissible, as a practical matter, where would a tenant obtain the money to repair the roof of an apartment house. Nor could the tenant enforce the statutory duty to repair the roof imposed by section 78 Mult. Dwell. of the Multiple Dwelling Law because it is enforceable only by the municipality and not by the tenant (Emigrant Ind. Savs. Bank v One Hundred Eight West Forty-Ninth St. Corp., 255 App. Div. 570, affd 280 N.Y. 791).
In this case, as in Amanuensis ( supra), consideration of the issue necessarily must start with an analysis of the leading case, Davar Holdings v. Cohen ( 255 App. Div. 445, mot. for rearg. den. 256 App. Div. 806, affd. 280 N.Y. 828). In the Davar case the tenant covenanted in the lease to comply with the requirements of law — and he had refused to have the apartment painted.
The leading cases in this area are Davar Holdings v. Cohen ( 255 App. Div. 445, rearg. den. 256 App. Div. 806, affd. 280 N.Y. 828) and Emigrant Ind. Sav. Bank v. 108 West 49th St. Corp. ( 255 App. Div. 570, affd. 280 N.Y. 791), both First Department cases decided within a few months of each other. Considering the tremendous influence these decisions have had on the day-by-day disposition of landlord and tenant matters in the trial courts of this State, it is surely notable that neither of them confronted the Appellate Division with anything approaching the critical problems of fairness and social policy presented by the case before me — problems common to many present day landlord and tenant cases. In the Davar case ( supra) described in the opinion as one of first impression, the lease required the tenant to comply with the requirements of law, and he failed to have the apartment painted.