Opinion
74290/14
02-23-2016
Israel Realty LLC D/B/A 333 REALTY, Petitioner v. Inessa Shkolnikov, Respondent
Joseph M. Claro, Esq. Tenenbaum Berger & Shivers LLP 26 Court Street, Penthouse Brooklyn, NY 11242 (718) 596-3800 James B. Fishman, Esq. Fishman Rozen LLP 305 Broadway, Suite 900 New York, NY 10007 (212) 897-5840
Joseph M. Claro, Esq. Tenenbaum Berger & Shivers LLP 26 Court Street, Penthouse Brooklyn, NY 11242 (718) 596-3800 James B. Fishman, Esq. Fishman Rozen LLP 305 Broadway, Suite 900 New York, NY 10007 (212) 897-5840 Michelle D. Schreiber, J.
In this summary nonpayment proceeding the petitioner is the proprietary lessee of the subject premises. The respondent entered into possession pursuant to a written lease. The petition seeks possession based upon respondent's failure to pay $2,250 per month for the period from May through August 2014. The respondent filed a written answer by counsel asserting eight defenses and five counterclaims. The petitioner moved to strike the first through fourth defenses and all of the counterclaims, and to join the cooperative corporation. The respondent withdrew her first through fourth defenses. In a decision dated March 3, 2015, the motion to join the cooperative corporation and to strike the defenses of partial eviction, constructive eviction and breach of warranty of habitability was denied, however, the Court granted the motion to strike the eighth defense and fourth counterclaim for return of the security deposit. The case was transferred to the trial part on June 3, 2015.
The parties stipulated to the petitioner's prima facie case as to the rent claim for May through August 2014 and to the fact that the respondent was not in possession of the subject premises as of the end of August 2014. The trial of the respondent's defenses took place on June 3, September 10, and October 29, 2015. The matter was adjourned for post-trial memoranda which were submitted January 19, 2016. Based upon the credible documentary and testimonial evidence the Court makes the following findings of fact and conclusions of law.
The respondent's first witness was Susan Crumiller, an attorney from the firm retained by the respondent. Ms. Crumiller testified that in response to her client receiving a rent demand, she sent a letter to the landlord to attempt to resolve the matter. She was called by Arthur Weiner in response to the letter and they discussed a resolution of the claims without litigation; her demand was for a "reasonable abatement." Mr. Weiner did not want to negotiate and declined to give her the name of his attorney. After respondent received a Notice of Petition and Petition, Ms. Crumiller contacted petitioner's attorney in a further effort to settle the case, but no settlement was reached. Ms. Crumiller was informed by the attorney that petitioner intended to move to strike the respondent's defenses. In response she stated respondent would waive her jurisdictional defenses, but petitioner moved for this relief anyway. Ms. Crumiller repeated that her client wanted to limit legal fees and litigation; petitioner's response was a stated unwillingness to negotiate or offer an abatement.
Arthur Weiner testified pursuant to a subpoena. Mr. Weiner stated that he had been an owner of the building, a sponsor of the cooperative conversion plan, and that he owned ten apartments in the building which he maintained as sponsor units and either rents or sells them without the need for board approval. He employs a managing agent for the units he owns. Mr. Weiner claimed that he is hardly ever in the building and had never been in the subject premises. Although he denied receiving a letter from the respondent, he recalled speaking to her in the Spring of 2014 and being surprised by her complaints regarding construction on the terrace. He stated that the construction was being done by the cooperative to comply with Local Law 11. He stated that he took a personal interest in the respondent's concerns, and therefore contacted the managing agent for the cooperative to see if they'd offer compensation which he'd pass onto the respondent. He offered to relocate the respondent and release her from the balance of the lease advising her to contact him to let her know what she wanted to do. Mr. Weiner was unable to recall any details regarding when the respondent actually vacated, when the apartment was re-rented, and the monthly charge upon re-renting. Nevertheless, he was certain that the respondent did not contact him to accept his offer to relocate her nor did she continue to pay rent or advise him of when she was moving so he could show the apartment to prospective tenants. Mr. Weiner initially claimed that a terrace did not increase the value of an apartment any more than other factors such as the neighborhood, whether there is a doorman, and if the apartment is newly renovated with granite tops and new appliances. He then stated that an apartment with a terrace is ten to fifteen percent more valuable. He denied any knowledge of the dimensions for the apartment or of how it is marketed by his agent.
Ms. Shkolnikov testified that she is a design director for Cooper Union where she has worked for sixteen years. She is responsible for design of all of Cooper Union's materials and supervises two people. She testified that she saw the apartment and wanted to rent it because it was newly renovated and had outdoor space. The initial lease was signed in 2011 for one year, the monthly rent was $2,000; thereafter the lease was renewed several times. The last lease renewal was signed in February 2014 for the period from April 2014 through March 2015; the monthly rent was $2,250. Because the apartment was small Ms. Shkolnikov had minimal furniture indoors, but fully furnished the terrace with plants, lights, a dining table and six chairs, and a lounge chair; she used the terrace daily for meals, to have coffee and smoke (until she quit), for her dog (not for bathroom purposes) and entertained weekly in the spring, fall and summer. Pictures of the apartment and furnished terrace were admitted into evidence. The terrace was for her exclusive use and accessed by a door from her apartment. Aside from the door to the terrace, the apartment has two windows only one of which opens.
On April 21, 2014 the respondent woke up to find men on the terrace moving her furniture to the back of the terrace; she thought she was being robbed. The terrace was accessed by the workers through the basement and respondent had not been given any notice. She called the front desk and was told the super would come to her apartment. The super advised the respondent of the work plan and that she should not step outside due to possible falling bricks. The workers put plastic sheeting on the terrace, erected scaffolding, and taped a sign to the respondent's window that read "DANGER Construction Area." Pictures of the scaffolding, ladders, and sign were admitted into evidence. The respondent was deprived of the use of the terrace from April 21, 2014 through the end of August 2014 when she vacated the apartment. As the work continued the respondent described the affects on her indoor space detailing the accumulation of dust and debris on the windows. As a result, the respondent was unable to open the window, and therefore unable to cook in her apartment. She kept the shades pulled in the apartment due to the presence of the workers just outside on a daily basis and as a result she had no privacy and was deprived of natural light; she regularly heard the workers on the terrace and was forced to dress in the bathroom. The respondent felt unsafe in her apartment, a feeling that was exacerbated by a burglary in a neighboring apartment. In addition to speaking to the super, the respondent spoke to the doorman on several occasions regarding the conditions in her apartment.
In a letter to Arthur Weiner dated May 12, 2014, Ms. Shkolnikov detailed the conditions in the apartment and included photographs, and asked for a reduction in rent; her return address was on the envelope and it was never returned to her. A week later Mr. Weiner called, admitted he received the letter, but refused to offer any abatement; he advised the respondent to move out if she was dissatisfied. The respondent called Mr. Wiener two days later and informed him she wanted to move out. He said she'd have to find someone to take over the apartment. She questioned this given the lack of access to the terrace and the inability to open the only window in the apartment; she then decided to retain counsel.
The respondent subpoenaed Elliot Katz, the property manager for the building from February 2012 through June 2014, as her final witness. Mr. Katz was hired by the cooperative board and his duties included attending board meetings, periodically visiting the building, and regular contact with the super. Minutes of the meetings of the board for the period from February 2012 through September 2015 were admitted into evidence. The minutes of February 12, 2012 reference the Local Law 11 work planned for the building and Mr. Katz's direction from the board to follow up with JMA, the engineer/architect for the work. JMA did onsite work in 2012, wrote up the specifications for the work, and sent it out for bid. JMA continued to oversee the work and SSG was hired as the contractor. Certified copies of relevant Department of Buildings documents for the work were admitted into evidence. The work was mandated by the city and was to be done on all four sides of the building, beginning with the front of the building; that work commenced in 2013. Pursuant to a direction from the board at the meeting on September 26, 2013, Mr. Katz wrote letters to owners regarding the need to remove personal possessions from all terraces in preparation for the Local Law 11 work at the back of the building. Mr. Katz testified that he sent a letter to Mr. Wiener; in addition, letters were to be put under apartment doors by the super. He testified further that he spoke to Mr. Wiener regarding the project after the work commenced on the front of the building in 2013. Once the scaffolding was constructed in April 2014 for the work on the back of the building, terraces could no longer be used by the residents including the respondent. At this time Mr. Katz spoke to Mr. Weiner regarding the work; Mr. Weiner did not request that the work stop.
The petitioner called Arthur Weiner as a rebuttal witness. He recalled speaking to the respondent after receiving her letter. He was sympathetic to her complaints and claimed he contacted Mr. Katz to see if the work could be stopped but was informed it was mandated by the City. Mr. Weiner offered to release the respondent from her lease and relocate her either to another apartment in the same building or in another building, but stated she wanted an abatement and then vacated without informing him; he learned respondent had given the keys to the super. Mr. Weiner denied having any position on the cooperative board and denied getting a letter informing him of the Local Law 11 work. He claimed he did not see permits posted at the building asserting he rarely goes to the building because he doesn't like Manhattan and is a "Brooklyn boy." He admitted that he entered into a renewal lease commencing on April 1, 2014 at a higher rent and claimed that if he knew the work was to be done he would have informed the respondent.
The respondent met her burden of proof on her remaining defenses of partial eviction, constructive eviction, and breach of the warranty of habitability. To the extent the petitioner relied upon paragraph 2(b) of the sublease to shift any responsibility to the cooperative corporation, the Court finds the services referenced in 2(b) do not include the patio which is the sole responsibility of petitioner herein pursuant to paragraph 18(a). Nor can it be said that the reference to "casualty" in paragraph 2(b) warrants a shifting of responsibility to the cooperative corporation since work pursuant to Local Law 11 is not damage in the nature of a fire or other unintended or sudden event. Rather, this Court finds petitioner knew or should have known that the Local Law 11 work was planned as of February 2012. The petitioner was notified in writing in the fall of 2013 of the need to prepare the terrace by removing items. The work began on the front of the building in the fall of 2013 and Mr. Katz spoke to Mr. Weiner regarding the work at that time. Mr. Weiner's claim that he had no knowledge of any of these circumstances strains credulity. Because this Court finds Mr. Weiner had knowledge of the Local Law 11 work, his negotiating and executing a renewal lease at a higher monthly rent commencing on April 1, 2014, literally on the eve of the commencement of work on the back of the building with the attendant consequences for the respondent, was in bad faith.
The respondent lost the use of the terrace from April 21, 2014 through her vacatur at the end of August 2014. In addition, she was unable to appropriately use the interior of the apartment as a result of the lack of light and ventilation; she had to keep the shades drawn since the workers were immediately outside the window, and the window closed to avoid the dust and debris. The petitioner's attempt to avoid liability for its breach of the warranty of habitability by virtue of paragraph 2(b) of the proprietary lease (even if it applied herein which as noted above this Court finds it does not) is unavailing since any agreement waiving rights pursuant to RPL § 235-b is void. Nor is the fact that the work is mandated by the city a basis for a finding of no liability. See e. g., Park West Management Corp. v Mitchell, 47 NY2d 316 (1979). The petitioner had actual knowledge that the Local Law 11 work would impact the respondent's use of the premises and failed to take any action. As a result, based upon the partial actual eviction as well as the doctrine of constructive eviction the respondent is entitled to a complete abatement of rent for the period from April 21, 2014 through August 2014. See e. g., Barash v Penn. Terminal Real Estate Corp., 26 NY2d 77 (1970). Based upon the foregoing the petition is dismissed with prejudice.
The respondent is the prevailing party herein and has asserted a counterclaim for attorney's fees. The matter is restored to the Part S calendar on March 7, 2016 at 9:30 a.m. to be referred to Part H to determine a date for the hearing.
The foregoing is the decision and order of the Court, copies of which are being mailed to the attorneys indicated below. The parties are advised to pickup exhibits from Part H within ten days or they will be disposed of in accordance with DRP-185 (www.nycourts.gov/courts/nyc/civil/directives/DRP/DRP185.pdf). This is the decision and order of the court, copies of which are being mailed as indicated below. Dated: New York, NY February 23, 2016 _________________________________ Michelle D. Schreiber, JHC