Opinion
48480/2018
08-23-2019
Come N. KETCHAKEU, Petitioner-Landlord, v. Jonelle SECKA, Respondent-Tenant.
Todd Rothenberg, Esq., 271 North Avenue, Suite 115, New Rochelle, New York 10801, (914) 235-7234, for Petitioner's. Janelle R. Greene, Esq., Bronx Legal Services, 369 East 148th Street, 2nd floor, Bronx, New York 10455, (718) 928-3700, for Respondent's.
Todd Rothenberg, Esq., 271 North Avenue, Suite 115, New Rochelle, New York 10801, (914) 235-7234, for Petitioner's.
Janelle R. Greene, Esq., Bronx Legal Services, 369 East 148th Street, 2nd floor, Bronx, New York 10455, (718) 928-3700, for Respondent's.
Diane E. Lutwak, J. This nonpayment proceeding was commenced by Come N. Ketchakeu (Petitioner) seeking to recover possession of Apartment 3 at 723 East 219th Street, Bronx, New York 10467 (the subject premises) based on the allegation that Jonelle Secka (Respondent) failed to pay past due rent. The petition, dated September 10, 2018, alleges that the subject premises are in a 3-family house, are not subject to rent regulation and are rented pursuant to an oral lease agreement to pay rent of $1900 per month. The petition seeks arrears of $18,295, comprised of $1900 for each month from January 2018 through September 2018 and a $950 balance due for December 2017.
Respondent filed an answer on October 5, 2018, prior to securing legal representation, asserting defenses of nonreceipt of the Notice of Petition and Petition, rent payment and a "general denial". Respondent also wrote in on her answer form that she disagrees with the amount owed because of payments made by both her and the New York City Human Resources Administration (HRA) and that she is due a credit for damages. On the initial court date, October 12, Respondent retained counsel and the proceeding was adjourned by stipulation to December 5 for Petitioner to provide a "complete" rent history and to make repairs on specified access dates. The conditions listed to be repaired were: water leaking through ceilings when it rains; water damage to ceilings in entire apartment; warped wood floors in master bedroom; mold in master bedroom, second bedroom and smaller bathroom; corroded caulking around bathtub and sink; defective stove burners; and defective light fixtures in third bedroom.
On December 5 Petitioner provided Respondent with a rent history alleging arrears of $23,622.27 and Petitioner accepted service of Respondent's amended answer. The matter was adjourned to January 23, 2019 for trial or settlement. The amended answer includes an affirmative defense and counterclaim based upon breach of warranty of habitability due to extensive water leaks and damage throughout the apartment; rotting ceiling in master bedroom causing mold; warped floors in master bedroom as a result of constant water damage; soft, water-damaged walls in two bedrooms; extensive mildew in back bathroom; caulking in master bathroom around tub; broken intercom; only one working pilot light on gas stove; and a putrid odor throughout the apartment. The amended answer also includes an affirmative defense of partial constructive eviction due to deprivation of the use of one of the bedrooms for seven months and a counterclaim of source of income discrimination due to Petitioner's refusal to provide documentation which would have allowed Respondent to secure charitable assistance to pay her rent arrears.
On January 23, 2019 the case was adjourned to March 21 when it was sent to Part X and adjourned to April 10 for pretrial conference. The trial began on May 28 and concluded July 2, 2019. Post-trial briefs were submitted August 2.
TRIAL
Petitioner presented his case through his own testimony and documents admitted into evidence. Petitioner has owned the premises since 2010, with a current deed in his own name and a prior deed in the name of KNC & BROS MENLAH LLC, a company of which he was the sole member. His middle name is "Nasser" and sometimes he uses this name when signing documents. Petitioner lives in the first-floor apartment of this three-family building which is registered with the New York City Department of Housing Preservation and Development (HPD) as a multiple dwelling. Respondent has lived in the building since 2015 or 2016, her apartment is not subject to rent regulation and her most recent written lease ran from May 1, 2017 through April 30, 2018, with a monthly rent of $1900. During the period of January 2018 through trial Petitioner received no rent money directly from Respondent but did receive $125 twice a month from HRA until March 2019 when he received one last check for $125.
At the close of Petitioner's case Respondent moved to dismiss as to any arrears prior to January 2018, which Petitioner agreed to sever.
Respondent testified on her own behalf. The subject premises are located on the third (top) floor of the building, directly under the roof, and consist of three and a half bedrooms, two bathrooms, kitchen, dining room, living room and balcony. Respondent lived there with her daughter and son and moved out on March 8, 2019 to another apartment where she has a lease that began in December 2018. Respondent testified that she tried several times to give the keys to Petitioner after moving out but was unsuccessful. The first time was a week after she moved out, when she went to Petitioner's door but there was no answer. She also asked her daughter who lives nearby to try to return the keys. The last time she went to the building was in June to retrieve mail that had been sent there "by mistake".
The major problem in Respondent's apartment was water leaks. Starting in November 2016 water would come in through the ceilings of the master bedroom and Respondent's daughter's adjacent bedroom, damaging the ceilings, walls and carpeting and causing a smell of mold and mildew and creating dampness throughout the apartment. Respondent testified that she first notified Petitioner of this problem shortly before Thanksgiving in 2016. After a certain point Respondent's daughter's bedroom became uninhabitable as water "would pour down on anything" in the room near the window and radiator.
In December 2017 and January 2018 the living room ceiling also developed brown spotting and water marks which Respondent notified Petitioner of by sending him four letters and numerous texts and emails and also by calling him on the telephone.
From January 2018 forward the water leaks recurred every month, any time there was precipitation, and Respondent continually reported these problems to Petitioner by telephone, text and email. Respondent testified that she called Petitioner approximately 30 times and sent him approximately 25 text messages about the conditions. Text messages between the parties sent during the period of February 5, 2018 through August 30, 2018 were admitted into evidence. Petitioner would respond by asking Respondent to send him photos and by sending repairmen to plaster and paint. Workers came to the apartment approximately twenty times. However, the underlying condition persisted, and the water damage repeatedly recurred.
Photographs and a video of the water leaks and water damage to the living room ceiling, master bedroom ceiling and walls and daughter's bedroom wall and carpeting, taken in October 2018, were admitted into evidence.
These conditions in the apartment made Respondent anxious because a ceiling in another apartment she had lived in had fallen on her in 2000 and she worried that this would happen again. In addition, Respondent's use of the apartment was adversely affected because of the foul smells of mildew, dampness and mold. Respondent testified that the water leaks in her daughter's bedroom damaged the furniture, saturated the rug and rendered that room uninhabitable for the last year of their tenancy. The odors and moisture also affected Respondent's daughter's asthma and caused her to have other health problems. Respondent could not invite people over because of the condition of the apartment.
In addition, in 2017 there was no heat for three weeks during which Respondent had to use her stove to heat the apartment. During another unspecified period of four or five months Respondent's stove was not working.
Respondent testified that she previously worked in the fiscal office at Bronx Defenders handling budgeting and accounting functions. In June 2016 she stopped working because she had lost 74% of her vision and was no longer able to do accounting work. Respondent is registered as legally blind with the Commission for the Blind in accordance with New York State Law Section 8707 and presented an identification card confirming her registration. Respondent exhausted her savings to pay the rent and then sought help from City agencies. She approached the Coalition for the Homeless, the Bridge Fund, BronxHelpUSA, The Federation and HRA. While able to obtain some assistance from HRA she was unable to get assistance from the charities. Respondent testified that the explanation she was given by these agencies was that "the criteria for getting assistance would have been a rent breakdown or some form of legal court document which I did not have." Respondent requested these documents from the landlord who said he would only give rent receipts and "that landlords did not like getting involved with City payments". Respondent's daughter Ashley Taylor testified that she moved in with her mother at the beginning of 2017 and moved out in April 2019. Ms. Taylor testified that almost the entire time she lived there she had to deal with water leaks in her bedroom, which "was so bad" for a period beginning approximately a month or two before she moved out that she couldn't stay in the room. Every time it rained the window seal would leak, her curtains and bed would get soaked and when she stepped off her bed the carpet would be wet and uncomfortable and would emit "a bad smell". The water leaking into her bedroom caused damage to Ms. Taylor's belongings and prevented her from having people over. Whereas she had "bad asthma" while living in the subject premises, once she moved out her asthma improved.
Petitioner returned to the witness stand on rebuttal and testified that Respondent first complained to him about conditions about a month after she moved in and then complained many times after that. She usually would contact him by sending text messages, although he told her to call and leave messages and sometimes she did that too. Petitioner testified that he responded every time Respondent requested repairs, as quickly as he could. Petitioner would contact a contractor right away and schedule repairs according to the contractor's schedule.
Petitioner offered into evidence the following six invoices related to repairs that were done either to the roof of the building or in Respondent's apartment:
• Invoice from Dillon Wright dated 12/22/16 "To repair roof of [723 E 219 St, Bronx NY] by replacing (16) sixteen ro[l]ls of material and hardware to cover all area of roof. Total cost $3,900. Paid $2,600. Bal $1,300." [Petitioner's Exhibit #7]
• Invoice from D Wright dated 3/9/17 "To remove and replace guttering to include roof supply and down spout to horizontal lead to house and storm drain. Total labor cost $562." [Petitioner's Exhibit #10]
• Invoice from D Wright dated 3/13/17 "To repair ceilings of 1st, 2nd and 3rd floor caused by water damage from faulty roofing and gutters by scraping, plastering and painting damaged areas of ceiling and walls. Total labor cost $750." [Petitioner's Exhibit #8]
• Invoice from M Cruz Construction Inc. dated 7/8/17 for "waterproofing [indecipherable handwriting]. $1700." [Petitioner's Exhibit #9, p. 1]
• Proposal marked paid from M Cruz Construction Inc. dated 4/9/18 stating, "We will install new 4 roof vents. We apply cores joints roofing flushing all lines. We will install aluminum capping on front and back wall. We will apply aluminum roofing coating all over the roof and walls. Total price: $3,000." [Petitioner's Exhibit #9, p. 2]
• Invoice from Manuel Martinez dated 8/6/18 for "some repairs plaster and paint apt.2nd floor and apt.3rd floor. Install new Delta faucet on the 3rd floor apt. Total $510." [Petitioner's Exhibit #11]
Petitioner testified that he never had the entire roof replaced, but that he had significant repairs done to it a total of eight or ten times. He did not have proof of all of the repairs because some contractors did not provide receipts.
During his rebuttal testimony on July 2, 2019 Petitioner requested that the petition be amended to date as the apartment was not vacant and Respondent had not yet surrendered the keys. Petitioner saw Respondent at the premises as recently as June 24 and saw her son leaving the premises on July 1. A written surrender of the keys through counsel was effectuated in court on July 2.
DISCUSSION
It was undisputed that Respondent's monthly rent is $1900, and for the period of January 2018 forward the only rent monies Petitioner received were from HRA: payments of $250 per month for the fourteen months of January 2018 through February 2019 plus a payment of $125 in March 2019 for a total of $3625. Respondent's testimony that she moved out on March 8, 2019 was disputed by Petitioner, and Respondent's testimony that she tried unsuccessfully to turn in her keys — going to Petitioner's door on one occasion a week after she claims to have moved out and then asking her daughter at some unspecified time to try again — was insufficient to establish a surrender. Respondent did not testify that Petitioner was present when she moved out, observed her vacating the premises or otherwise had knowledge that the landlord-tenant relationship had ended. Compare Fideor v. Stiewe , 52 Misc. 3d 1203(A), 38 N.Y.S.3d 830 (Justice Ct. of Webster, Monroe Co. 2016). Further, not only was Respondent's testimony contradicted in part by her daughter, who testified that she did not move out until some point in April 2019, given the pendency of this proceeding since September 2018 and the fact that both parties are represented by counsel, a proper, unequivocal written surrender could have been effectuated through the parties' attorneys. Accordingly, the court grants Petitioner's request to amend the Petition through June 2019, at which point Respondent owed $30,575, comprised of eighteen months of rent ($34,200) minus the HRA payments ($3625).
New York Real Property Law § 235-b provides for an implied warranty of habitability which requires landlords of residential premises to keep them "fit for human habitation" and free of conditions that are dangerous to the life, health or safety of the tenants. Park West Management Corp. v. Mitchell , 47 N.Y.2d 316, 327, 391 N.E.2d 1288, 1294-1295, 418 N.Y.S.2d 310, 317 (1979). As explained by the Court of Appeals in Park West Management Corp. v. Mitchell, supra, "a landlord is not required to ensure that the premises are in perfect or even aesthetically pleasing condition; he does warrant, however, that there are no conditions that materially affect the health and safety of tenants. For example, no one will dispute that health and safety are adversely affected by insect or rodent infestation, insufficient heat and plumbing facilities, significantly dangerous electrical outlets or wiring, inadequate sanitation facilities or similar services which constitute the essence of the modern dwelling unit." If a landlord breaches the warranty of habitability, the proper measure for damages 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." Park West Management Corp. v. Mitchell, supra. The award may take the form of a sum of money awarded the tenant in a plenary action or a percentage reduction of the contracted-for rent as a setoff in a summary nonpayment proceeding in which the tenant counterclaims, or pleads as a defense, breach by the landlord of its duty to maintain the premises in habitable condition. Id.
As to the measure of damages, a tenant may recover the difference between the fair market value of the premises in good repair, as measured by the agreed rent, and their value during the period of the breach as determined by the trier of facts. In determining the amount of the abatement the court may consider the severity of the defects, the period of time during which they existed, their impact on the tenant's living habits as well as the effectiveness of the landlord's attempt to remedy them. Park West Management Corp. v. Mitchell, supra ; Century Apartments, Inc. v. Yalkowsky , 106 Misc. 2d 762, 435 N.Y.S.2d 627 (Civ. Ct. N.Y. Co. 1980).
This court concludes that Respondent has established by a preponderance of the credible evidence that Petitioner breached the warranty of habitability with respect to the subject premises and that the health and safety of Respondent and her family was detrimentally affected by the conditions that existed throughout the entire period of time for which Petitioner seeks unpaid rent. It was essentially undisputed that the roof of 723 East 219th Street continuously leaked when it rained and that Respondent repeatedly reported this to Petitioner. Respondent and her family bore the brunt of this problem, as they live in the top floor of the building right under the roof, whereas Petitioner lives on the first floor. There does not appear to have been any communication problems between the parties and Petitioner responded to Respondent's complaints by hiring contractors to make various repairs to the roof and to the interior of Respondent's apartment where there was water damage. However, for reasons that were not explained at trial it is evident that the work Petitioner paid for was ineffectual and did not stop water from leaking in through the ceilings of Respondent's master bedroom and living room and through the seal around the window in Respondent's daughter's bedroom. Both Respondent and her daughter testified credibly as to the persistence of the water leaks and their effect on their lives, including limited use of the affected rooms not only because water recurrently dripped in but also because of the ongoing odors, excess moisture, mold and mildew. Further, Respondent testified to her well-founded fear of the ceiling falling in, having been injured in this manner in the past. See, e.g., Govan v. Ft. Sheri Realty Co. , 267 A.D.2d 99, 700 N.Y.S.2d 3 (1st Dep't 1999).
Courts have awarded a broad spectrum of abatements for water leaks, depending upon the facts of the case. See, e.g., Westhattan Corp. v. Wong , 42 Misc. 3d 130(A), 984 N.Y.S.2d 635 (App. Term 1st Dep't 2013) ; 13 E. 9th St. LLC v. Seelig , 63 Misc. 3d 1218(A), 2019 WL 1747004 (Civ. Ct. N.Y. Co. 2019) ; De Socio v. 136 E. 56th St. Owners , 2018 WL 6056222, 2018 N.Y.L.J. LEXIS 3865 (Civ. Ct. N.Y. Co. 2018) and cases cited therein ; Sargent Realty Corp. v. Vizzini , 101 Misc. 2d 763, 421 N.Y.S.2d 963 (Civ. Ct. N.Y. Co. 1979) ; and see Heights 170 LLC v. York , 29 Misc. 3d 138(A), 920 N.Y.S.2d 241 (App. Term 1st Dep't 2010) ; 3 Green Street, LLC v. Caceres , 63 Misc. 3d 1231(A), 2019 WL 2256396 (Justice Ct., Village of Hastings-on-Hudson, Westch. Co. 2019) ; Spatz v. Axelrod Management Co., Inc. , 165 Misc. 2d 759, 630 N.Y.S.2d 461 (City Ct., Yonkers, Westch. Co. 1995).
Here, where there was credible testimony that the persistent water leaks through the ceilings of the master bedroom and living room and around the window in Respondent's daughter's bedroom, and consequent water damage, seriously affected the habitability of those rooms, the Court awards a 20% abatement of the rent for the 18-month period from January 2018 through June 2019. See, e.g., 13 E. 9th St. LLC v. Seelig, supra ; Baldwin Merrick Associates v. Relles , 20 Misc. 3d 1112(A), 867 N.Y.S.2d 372 (Dist. Ct. 1st Dist. Nassau Co. 2008) ; 601 West 160 Realty Corp. v. Henry , 183 Misc. 2d 666, 705 N.Y.S.2d 212 (Civ. Ct. Kings Co. 2000). The measure of damages to be used as the basis of the rent abatement is the contract rent of $1900 per month. Park West Management v. Mitchell, supra ; 13 E. 9th St. LLC v. Seelig , 2019 N.Y. Slip Op. 50582(U), 63 Misc. 3d 1218(A), 2019 WL 1747004 (Civ. Ct. N.Y. Co. 2019), citing Committed Cmty. Assocs. v. Croswell , 250 A.D.2d 845, 846, 673 N.Y.S.2d 708 (2nd Dep't 1998).
No separate abatement will be awarded on Respondent's claims of inadequate heat and a defective stove as there was insufficient evidence presented of these problems. Similarly, as to Respondent's claim of partial constructive eviction due to the water leaks into her daughter's bedroom no separate abatement will be awarded as the evidence was equivocal as to the period for such partial constructive eviction. Whereas Respondent testified that her daughter could not use her bedroom starting in July 2018, Respondent's daughter testified that she moved out of her bedroom "maybe a month or two before April [2019]".
Regarding Respondent's claim of discrimination based upon source of income, under the New York City Human Rights Law, it is unlawful for an owner [ ] of real property to discriminate with regard to the terms, conditions or privileges in the leasing of a housing accommodation against a person or group of persons because of their actual or perceived race, creed, color, national origin, gender, age, disability, sexual orientation, uniformed service, marital status, partnership status, or alienage or citizenship status, or because of their lawful source of income, or because children are, may be or would be residing with such person or persons. NYC Admin. Code § 8-107. The prohibition against discrimination based upon lawful source of income was added in 2017, and the legislative intent behind this provision is stated in NYC Admin Code § 8-101 Section 1 as follows:
In addition to the owner of real property the statute prohibits discrimination by the "lessor, lessee, sublessee, assignee, or managing agent of, or other person having the right to sell, rent or lease or approve the sale, rental or lease of a housing accommodation, constructed or to be constructed, or an interest therein, or any agent or employee thereof". NYC Admin. Code § 8-107(5).
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Section 1. Legislative Intent. The Council hereby finds that some landlords refuse to offer available units because of the source of income tenants, including current tenants, plan to use to pay the rent. In particular, studies have shown that landlords discriminate against holders of section 8 vouchers because of prejudices they hold about voucher holders. This bill would make it illegal to discriminate on that basis.
The term "lawful source of income" is defined in the Administrative Code as follows:
The term "lawful source of income" includes income derived from social security, or any form of federal, state or local public assistance or housing assistance including section 8 vouchers.
NYC Admin. Code § 8-102.
Respondent seeks a finding by the Court that Petitioner engaged in discrimination based upon "lawful source of income" in violation of NYC Admin. Code § 8-107(5)(a)(1)(b) based upon Petitioner's failure to provide her with a "rent breakdown or some form of legal court document" which she testified the charities told her "was the criteria for getting assistance". Respondent also testified that Petitioner told her that "landlords did not like getting involved with City payments." This testimony from Respondent, which was the only evidence presented of the alleged discrimination, is insufficient for the Court to find that Petitioner discriminated against Respondent based on her "lawful source of income".
In Rakhman v. Alco Realty I, L.P. , 81 A.D.3d 424, 916 N.Y.S.2d 581 (1st Dep't 2011), the Appellate Division affirmed the trial court's order holding that the landlord's refusal to complete a lead paint disclosure form required by the New York City Housing Authority to process the tenant's federal Section 8 housing subsidy voucher constituted a refusal to accept the tenant's Section 8 benefits which, in turn, was found to be a violation of the New York City Human Rights Law. The appellate court noted that the trial court "correctly found that plaintiff would have been eligible for the benefits but for the missing lead paint disclosure form".
Respondent has failed to prove either that she would have been eligible for charitable assistance but for Petitioner's alleged refusal to give her a "rent breakdown or some form of legal court document" or that Petitioner in fact refused to provide her with those documents. Respondent merely testified, without specific dates or times, that she approached the Coalition for the Homeless, the Bridge Fund, BronxHelpUSA, The Federation and HRA for assistance in paying her rent arrears, that the "explanation I was given from each agency was the criteria for getting assistance would have been a rent breakdown or some form of legal court document which I did not have" and that Petitioner told her that "landlords did not like getting involved with City payments". It is undisputed that Petitioner in fact did accept payments from HRA, which have been deducted from the total rent charged to calculate the unpaid rent for which Petitioner seeks a judgment. While Respondent testified that she received no assistance from any charities, there was no testimony or other proof from any charitable agency as to the requirements of their programs or why they denied her assistance. Further, the December 5, 2018 stipulation in this case reflects that Petitioner did in fact give Respondent a rent breakdown, and the Petition certainly constitutes "some form of legal court document".
Whether the definition of "lawful source of income" under the NYC Human Rights Law even includes rent arrears payments from non-governmental charitable entities is not decided herein. It is solely the paucity of the record before the Court which requires a denial of a finding of discrimination based upon "lawful source of income".
CONCLUSION
Accordingly, and bearing in mind that Petitioner has possession of the premises, Petitioner is entitled to a money judgment against Respondents for $23,735, comprised of the unpaid rent due for the period of January 2018 through June 2019 of $30,575 (18 months x $1900 = $34,200, minus HRA payments of $3625) minus a 20% abatement of the contracted-for rent (20% x $1900 = $380; $380 x 18 months = $6840).