Opinion
0160-16
04-21-2016
Orange Falls, LLC, Petitioner, v. Beverley Forrest, Respondent
For Petitioner: Bartlett, Pontiff, Stewart & Rhodes, P.C., (John D. Wright, Esq.) For Respondent: Legal Aid Society of Northeastern New York, Inc. (Brenna K. Sharpe, Esq.)
For Petitioner: Bartlett, Pontiff, Stewart & Rhodes, P.C., (John D. Wright, Esq.) For Respondent: Legal Aid Society of Northeastern New York, Inc. (Brenna K. Sharpe, Esq.) Gary C. Hobbs, J.
On March 8, 2016, the Petitioner filed with this Court, a Notice of Petition and Petition seeking to Recover Real Property alleging that the Respondent was a month-to-month tenant and, on January 13, 2016, the Petitioner served a 30 day notice terminating the tenancy effective as of February 29, 2016, and that the Respondent continues in possession of the premises without consent of the Petitioner. The Petitioner's Petition seeks judgment awarding possession of the premises located at Apartment No.1, located at 7 Chester Street, Glens Falls, New York, from the Respondent, together with a money judgment for the use and occupancy charges to the date of possession, together with all expenses of the action including reasonable attorneys' fees.
On March 18, 2016, the Respondent filed her Answer to the Petition. On March 29, 2016, the Respondent filed an Amended Answer to the Petition. The Respondent's Amended Answer alleged an affirmative defense of retaliatory eviction (RPL § 223-b). Here, the Respondent alleged that, on or about December 28, 2015, the Respondent contacted the Glens Falls City Code Enforcement Office regarding an inoperable stove and, within six (6) months of that complaint, the Petitioner sought to terminate the Respondent's tenancy. The Respondent's Amended Answer also alleged two separate counter-claims. The first counter-claim sought compensatory and punitive damages for the Petitioner's alleged retaliatory eviction. The Respondent's second counter-claim sought a rent abatement for an alleged breach of warranty of habitability (RPL § 235-b).
In her counter-claim for an alleged breach of warranty of habitability, the Respondent alleged a breach based on the lack of an operable stove, an inoperable doorknob on the bathroom door, the lack of a doorknob on the closet door, second-hand cigarette smoke coming from another tenant's apartment, loose slate on the roof of the premises, loose weather stripping on the door, holes in the driveway causing a tripping hazard, a tree root near the garbage receptacle that caused a tripping hazard, and the loss or deprivation of her parking spot.
Prior to the commencement of the trial of this action, the parties stipulated that the Petitioner's 30 day Notice to Quit was properly and timely served, and that there were no procedural defects service or filing of the Petitioner's Notice of Petition or Petition for a Holdover Eviction. The parties further agreed that, but for the Respondent's affirmative defense of retaliatory eviction, the Respondent's tenancy would have been properly terminated by the Petitioner's 30 day Notice to Quit. Based on the parties' pre-trial stipulations, this Court found that the Petitioner had demonstrated its cause of action for eviction based on the Respondent holding over beyond the termination of the term of parties' lease.
On April 15, 2016, a non-jury trial commenced on the Respondent's affirmative defense of retaliatory eviction and on the Respondent's counter-claims. The trial was concluded on April 18, 2016. During the trial, this Court was able to hear the testimony and, more importantly, to observe the demeanor and credibility of each of the witnesses. This Court has also reviewed the parties' exhibits that were admitted into evidence. The credible testimony and evidence supports the following findings of fact.
During its case, the Petitioner called Sean Wigley, a representative of Orkin Pest Control, to testify on April 15, 2015. Mr. Wigley was directed to return to court on April 18, 2016 for cross-examination by Respondent's counsel. Mr. Wigley failed to appear, despite repeated attempts by the Petitioner to have Mr. Wigley appear, thereby depriving the Respondent of the ability to cross-examine this witness. Respondent made a motion to strike Mr. Wigley's testimony. Petitioner was offered a new date to have Mr. Wigley appear for cross-examination, but declined that offer of an adjourned trial date and rested its case. This Court granted the Respondent's motion and struck Mr. Wigley's testimony and Petitioner's Exhibits 2, 3, 4 and 5 which were introduced through Mr. Wigley. As a result, the Court in determining this Decision and Order has not relied on any testimony of Mr. Wigley nor on any exhibits introduced through Mr. Wigley.
Findings of Fact
The Petitioner owns and operates apartments located at located at 7 Chester Street, Glens Falls, New York (hereinafter referred to as the "subject premises"). The subject premises consists of eight separate apartments and is not owner occupied.
On January 29, 2013, the Petitioner and the Respondent entered into a written lease agreement, under which the Respondent leased Apartment # 1 at the subject premises. The lease was for a term of six months commencing on February 1, 2013 and ending on July 31, 2013. Thereafter, the Respondent's tenancy became a month-to-month tenancy. The monthly rental is $530.00, which was due on the 1st day of each month. On January 13, 2016, the Petitioner served the Respondent with a 30-Day Notice terminating the Respondent's tenancy effective February 29, 2016.
The parties' lease agreement is annexed as Exhibit A to the Petitioner's Petition, and the Respondent admitted to terms of the lease agreement in paragraph 1 of her Amended Answer.
Respondent admitted to the service of the 30 Day Notice and the termination of her tenancy effective February 29, 2016 in paragraph 1 of her Amended Answer.
As a result of being served with the 30 Day Notice to Quit, the Respondent has admittedly not paid rent for the months for February, March and April of 2016. The Respondent remains in possession of the subject property.
The Petitioner has had a number of concerning issues with the Respondent. More specifically, in April of 2014, the Petitioner's property manager, Christine Reynolds, was called to the Respondent's apartment by the Glens Falls Police Department. Ms. Reynolds was asked to open the Respondent's apartment, because a strong odor was emanating from the Respondent's apartment, and the police were concerned that the Respondent may be injured inside the apartment. The police had attempted to obtain access to the Respondent's apartment without success. Also present was James Buxton, the Glens Falls Code Enforcement officer. According to Ms. Reynold's the smell from the Respondent's apartment was like "death." When Ms. Reynolds obtained the key, the Respondent answered the door. She refused to allow the police, Code Enforcement Officer or Ms. Reynolds to enter the property to investigate the smell. Ms. Reynolds offered to have her maintenance workers assist the Respondent to clear the clutter from her apartment and offered use of a garage for storage. The Respondent refused this offer.
In June of 2015, the Petitioner received a signed complaint from seven of the tenants at the subject premises concerning the Respondent's apartment [Pl.Ex.11]. In their complaint, the tenants state that the Respondent is a "hoarder" and that "all windows and walls and the emergency door are blocked to the ceiling." [Pl.Ex.11]. The tenants complaint indicated that there "is so much garbage in apartment 1, it is creating terrible odors." The tenant's complaint indicated that the building has cockroaches, which had never been a problem before the Respondent moved into her apartment. The tenants requested the Petitioner to remedy the "unsafe, unhealthy situation caused by [the Respondent]." [Pl.Ex.11].
On December 28, 2015, Laura Morgan, the Respondent's neighboring tenant, gave Ms. Reynolds a written letter complaining of the smell coming from the Respondent's property [Pl.Ex.7]. Ms. Morgan testified that it smells like garbage emanating from the Respondent's apartment. In her letter, Ms. Morgan describes the odor as being an "unbearable smell coming from her apartment." [Pl.Ex.7]. Ms. Morgan's letter indicates that her husband, Howard Morgan, has "health & breathing problems" and she is very concerned for him. [Pl.Ex.7]. Ms. Morgan requested the Petitioner to share her letter with the building inspector.
Howard Morgan also signed the June 2015 tenant's complaint about the condition of the Respondent's apartment [Pl.Ex.11].
In the morning of December 28, 2015, Christine Reynolds met with Chris Anderson, the Glens Falls Building Inspector to discuss the tenants' concerns about the condition of the Respondent's apartment. In response to that meeting with Ms. Reynolds, Mr. Anderson wrote to Dr. John Rugge, the City Health Officer and to Karen Judd, Esq., the City Attorney, to determine a method to obtain access to the Respondent's apartment, since the Respondent had previously denied both Ms. Reynolds and city officials access to her apartment. [Pl.Ex.7 and 9]. Mr. Anderson believed that an order may be needed to obtain access to the Respondent's apartment.
Later that same day (December 28, 2015), the Respondent contacted the City's Code Enforcement Office and filed an oral complaint and requested an inspection of her stove. The Respondent complained that her stove burners were not working. The stove burners would not light automatically with the pilot light, but the burners could be lit with a match. The Respondent testified that she had other appliances that she used to cook. Ms. Reynolds testified that, just before Christmas of 2015, the Respondent notified Ms. Reynolds, by a text message, that her stove was not operable. Mr. Anderson testified that, as a result of the Respondent's request for an inspection of her stove, he had no need to pursue an order to obtain access to her apartment.
The Respondent testified that she orally told Christine Reynolds, the property manager, about the inoperable stove in November of 2015. Ms. Reynolds testified that she was notified of the problem with the stove, for the first time, in a text from the Respondent, which she received just before Christmas of 2015. This Court credits the testimony of Ms. Reynolds. The Respondent's testimony was often inconsistent and not credible. For example, the Respondent initially testified that Ms. Reynolds never responded to her request to fix the stove. The Respondent then changed her testimony asserting that Ms. Reynolds told her that the stove was not going to be fixed.
On December 31, 2015, Mr. Anderson went to the Respondent's apartment, together with the city fire chief, to inspect her stove and to look at the general condition of the Respondent's apartment. Mr. Anderson found that the stove burners would not automatically light, but it would light with a match [Pl.Ex.6]. There was no gas leak noted. Mr. Anderson did note concerns about the clutter in the Respondent's apartment. There were items of property piled in the kitchen which left an aisle just wide enough for one person to pass through. He observed bugs (fruit flies) flying in the kitchen [Pl.Ex.6]. Mr. Anderson noted that, unless the Respondent's apartment was cleaned and less cluttered by January 4, 2016, the Respondent would be issued a citation for a Code violation [Pl.Ex.6]. Mr. Anderson made a follow up appointment with the Respondent to inspect the status of the clutter in her apartment on January 4, 2016.
On December 31, 2015, Mr. Anderson advised Ms. Reynolds about his observations of the stove and the general condition of the Respondent's apartment. Ms. Reynolds contacted Francis Erickson, an appliance technician, to repair the stove. An appointment was made for Mr. Erickson to repair the Respondent's stove on January 4, 2016.
On January 4, 2016, Mr. Erickson went to the Respondent's apartment to repair her stove. When he removed the top of the stove, he found that the stove was infested with cockroaches. Based on his experience, Mr. Erickson testified that the infestation of the stove area indicated that the oven would also be infested with cockroaches. Once he cleaned the top area of the stove, he found that the pilot light would stay lit, but he could not get the burners to work. Because of the infestation of the oven, Mr. Erickson advised Ms. Reynolds that the entire stove and oven should be replaced, rather than just replacing the stove burners. Mr. Erickson also turned off the gas to the stove/oven.
The cockroaches in the burner area were dead.
The stove and oven was brand new when the Respondent moved into the apartment in February of 2013.
Ms. Reynolds asked the Respondent to provide her with access to the apartment to measure the stove/oven for a replacement, and the Respondent denied her access. On January 4, 2016, Mr. Anderson had returned to reinspect the clutter in the Respondent's apartment. Ms. Reynolds asked Mr. Anderson to measure the Respondent's stove/oven. The stove/oven was a small apartment sized appliance, which needed to be special ordered. A new stove/oven was installed later in January of 2016. The city did not cite the Petitioner for any violation concerning the inoperable condition of the Respondent's stove/oven.
On January 4, 2016, Mr. Anderson noted that the clutter in the Respondent's apartment was "a little better" and that "one area is less cluttered." [Def.Ex.F]. According to the testimony of Laura Morgan, the Respondent's neighbor, the Respondent's apartment continues to have an offensive odor, but that the odor is less noticable.
On January 13, 2016, the Petitioner served the Respondent with a 30-Day Notice terminating the Respondent's tenancy effective February 29, 2016. This Court credits the testimony of Christine Reynolds and Denis Creeden, managing member of the Petitioner, that the Respondent's tenancy was terminated because of the tenants' continuing complaints about the offensive condition of the Respondent's apartment, and because the Respondent's apartment was not fully cleaned and remained cluttered, despite Mr. Anderson's attempts to have the Respondent clean her apartment. The Petitioner was also concerned that the Respondent's stove, which was new when the Respondent rented the apartment, was found to be infested with cockroaches. The Petitioner had offered to assist the Respondent to clean and clear her apartment. The Petitioner had offered assistance of its laborers and garage space for storage. The Respondent declined the Petitioner's offer of assistance. The Petitioner attempted to work with the city's code enforcement office to have the Respondent clean and clear her apartment, but the offensive smells continue from the Respondent's apartment.
With respect to the Respondent's counter-claim for a rent offset for a breach of warranty of habitability, the Petitioner stipulated with the Respondent's testimony that the Respondent's apartment was valued at $490.00 per month, rather than the leased amount of $530.00 per month, due to the deficiencies alleged in paragraph 21 of the Respondent's Amended Answer. The Petitioner, however, asserts that the counter-claim of a breach of warranty of habitability is not a defense to its holdover proceeding. Instead, the Petitioner asserts that the Respondent's counter- claim merely establishes the amount of rent owed by the Respondent for the use and occupancy of the apartment since the lease was terminated.
Conclusions of Law
In 1979, the New York State Legislature enacted RPL § 223—b in an attempt to protect residential tenants from evictions by landlords in retaliation against those tenants exercising, in good faith, their rights to exercise their section 235—b remedies and various other remedies. See: Rasch, Landlord and Tenant, § 1323.5 (Supplement). Real Property Law Sec. 223(b) was designed as a vehicle to encourage tenants to report housing code violations without fear of landlord reprisal. See, 3 NY Landlord & Tenant Incl. Summary Proc. § 43:34 (Rasch 4th Ed. 1998).
Section 223—b(1)(b) states that no landlord shall serve a tenant or commence an action in retaliation for actions taken in good faith to secure or enforce rights under section 235—b or any New York State law which has as its objective the regulation of leased premises. The prohibitions against retaliatory evictions set forth in RPL § 223-b only prohibit the landlord from certain expressly enumerated conduct. A landlord is entitled to evict the respondent from the leased premises for any legal reason except for those reasons expressed in RPL § 223—b.
The statutory protections against retaliatory eviction apply to "all rental residential premises except owner-occupied dwellings with less than four units." (RPL § 223—b[6]). This section provides, among other things, that no landlord shall serve a notice to quit or commence a summary proceeding to recover possession of real property in retaliation for "[a] good faith complaint, by or in behalf of the tenant, to a governmental authority of the landlord's alleged violation of any health or safety law, regulation, code, or ordinance, or any law or regulation which has as its objective the regulation of premises used for dwelling purposes . . ." (RPL § 223—b[1][a]).
If a court finds that the landlord commenced an eviction action or proceeding in retaliation for the tenant having taken any protected action, and also finds that the landlord would not otherwise have commenced such action or proceeding, then a "judgment shall be entered for the tenant." (RPL § 223—b[4]).
The burden of establishing the affirmative defense of retaliatory eviction lies with its proponent, the tenant. See: 339—347 E. 12th St. LLC v. Ling, 35 Misc 3d 30, 942 N.Y.S.2d 862 (App. Term, 1st Dept., 2012). For the Respondent to prevail in her defense of retaliatory eviction, she must be established that: (1) the tenant exercised a protected right in the conduct that she undertook; (2) the grievance complained of by the tenant is bona fide, reasonable, and serious in nature, and has a foundation in fact; (3) the tenant did not create the condition upon which the defense is based; (4) the grievance complained of was present at the time the landlord commenced the proceeding; and (5) the overriding reason the landlord is seeking the eviction is to retaliate against the tenant for exercising his or her constitutional rights. Toms Point Apartments v. Goudzward, 72 Misc 2d 629, 339 N.Y.S.2d 281 (Dist. Ct., Nassau County, 1972), judgment aff'd on other grounds, 79 Misc 2d 206, 360 N.Y.S.2d 366 (App. Term, Second Dept., 1973); 89 NY Jur.2d Real Property - Possessory Actions § 111.
RPL § 223—b provides a rebuttable presumption of retaliation where a landlord serves a notice to quit or commences an eviction proceeding within six months after the tenant made a good faith complaint "to a governmental authority of the landlord's violation of any health or safety law, regulation, code, or ordinance, or any law or regulation which has as its objective the regulation of premises used for dwelling purposes . . ." (RPL § 223—b[5][a]).
In the present case, the Respondent has proven a prima facie case for retaliatory eviction under RPL § 223-b. On December 28, 2015, the Respondent filed a complaint with Mr. Anderson, the Glens Falls Code Enforcement Officer, complaining that the stove in her apartment was not operable. The Respondent's complaint was a bona fide, good faith complaint. Her stove was actually not working. In addition, there was a good faith basis to believe that the inoperable stove constituted a violation by the landlord of a health or safety law, regulation, code, or ordinance, or any law or regulation. In the present case, the Petitioner was obligated to provide the Respondent with an operable stove/oven. The Respondent's complaint alleged that she was concerned that the stove knob could accidently be turned, resulting in a gas leak. Both Mr. Anderson and Mr. Erickson testified that a gas leak could occur, if the stove knob was accidently turned, since the pilot light was not working. In fact, Mr. Erickson testified that he shut off the gas to the Respondent's stove/oven to prevent an accidental gas leak. The fact that Mr. Anderson did not issue a citation to the Petitioner for a health or safety violation for the inoperable stove/oven does not mean that the Respondent's complaint was not based in good faith. Here, the Respondent had a reasonable complaint, based in fact, that her stove/oven was not working and that the stove/oven could constitute a health or safety hazard.
The Petitioner clearly served the Respondent with a notice to quit and commenced this eviction proceeding within six months after the Respondent made her December 28, 2015 complaint to the city's code enforcement officer. As a result, the Respondent has established the rebuttable presumption of a retaliatory eviction.
Once the tenant proves a prima facie defense of retaliatory eviction, the burden of proof then shifts to the landlord to come forward with evidence to rebut the presumption by showing some independent and non-retaliatory basis for the decision to evict the tenant. See: Paikoff v Harris, 178 Misc 2d 366, 368 (New York City Court 1998), aff'd as modified, 185 Misc 2d 372 (App. Term, Second Dept. 1999); 14 Carmody-Wait 2d § 90:161.
In the present case, the Petitioner has demonstrated that it had an independent and non-retaliatory basis for the decision to evict the tenant. Beginning in April of 2014, the Petitioner received repeated complaints about the offensive condition of the Respondent's apartment. These complaints continued through December of 2015. The Petitioner's other tenants had requested, in writing, that the Petitioner compel the Respondent to clean and clear her apartment of clutter. The Petitioner had offered the Respondent assistance to clear her apartment and had offered storage space for the Respondent's possessions. In the morning of December 28, 2015, the Petitioner's property manager, Christine Reynolds, met with Mr. Anderson to discuss involving the City Code Enforcement Office in the process of clearing the Respondent's apartment of clutter. This December 28, 2015 meeting occurred before the Respondent filed her complaint about her stove with Mr. Anderson, which the Respondent made in the afternoon of December 28, 2015. Mr. Anderson's inspection of the kitchen area noted fruit flies flying in the kitchen on December 31, 2015 (i.e.; in the middle of the winter). The Respondent's kitchen was so cluttered that only a small path was available to walk through. Mr. Anderson found that the condition of the Respondent's apartment did constitute a code violation, even though a notice of violation was not served on the Respondent. During Mr. Erickson's inspection of the Respondent's stove/oven, which was new when the Respondent moved into the apartment, he found that her entire stove and oven was infested with cockroaches.
Prior to commencing any action to remove the Respondent from her apartment, Mr. Creeden and Ms. Reynolds waited to see if the condition of the Respondent's apartment was substantially improved with the intervention of Mr. Anderson. Mr. Anderson's subsequent inspection of the Respondent's apartment, which occurred on January 4, 2016, found that the clutter in the Respondent's apartment was merely "a little better" and that "one area is less cluttered." [Def.Ex.F]. According to Laura Morgan, the Respondent's apartment continues to smell of garbage, but the smell is somewhat less offensive.
Based on these facts, the Petitioner has demonstrated an independent and non-retaliatory basis for the decision to evict the tenant. The Petitioner commenced these eviction proceedings based on the Respondent's failure to properly maintain her apartment in a clean and unoffensive condition. As a result, the Respondent's affirmative defense of retaliatory eviction is dismissed.
The Respondent's counter-claim for an offset in rent for a breach of warranty of habitability is granted to the extent that the Petitioner's claim for use and occupation for the Respondent's apartment is reduced from $530.00 per month, as set by the parties' lease agreement, to the amount of $490.00 per month per the Respondent's testimony of the fair and reasonable value of her apartment.
This Court, however, agrees with the Petitioner that the Respondent's counter-claim for an offset in rent for a breach of warranty of habitability is not a defense to the Petitioner's right to possession of the subject property based on this holdover proceeding. Ctr. for Behavioral Health Services, Inc. v Bock, 18 Misc 3d 1111 (City Court, Kings County, 2008). To the extent that a tenant asserts a breach of warranty of habitability defense and counter-claim, that aspect of the Answer is properly raised only in response to the landlord's claim for a money judgment based on the tenant's continued use and occupancy of the property after the tenancy was terminated. King Enterprises Ltd. v. Mastro, 2001 NY Slip Op 40162[U] (Civ Ct, New York County, 2001)(although a breach of habitability is not a defense to possession in a holdover action, it may be raised in a holdover proceeding to the extent that petitioner also seeks payment for the tenant's use and occupancy); Ruradan Corp. v Natiello, 21 Misc 3d 1129 (Civ. Ct. of the City of New York, New York County, 2008). While courts have held that breach of the warranty of habitability is not a defense in a holdover proceeding, the claim is allowed to provide a defense where, as here, the landlord is seeking money for use or occupancy of the premises. See: King Enter. Ltd. v. Mastro, 2001 NY Slip Op 40162[U] (Housing Part, Civ Ct, NY County 2001); City of New York v. Candelario, 156 Misc 2d 330, 332 (App Term, 2d Dept., 1993), aff'd in part and rev'd in part on other grounds, 223 AD2d 617 (2d Dept. 2006).
In the present case, during the trial, the Petitioner stipulated that the fair value for the Respondent's use and possession of the subject property was $490.00 per month, which was the amount testified to by the Respondent. Since the Respondent has not paid any amount for her use and occupancy of the apartment for the months of February, March or April of 2016, the Petitioner is entitled to recover the amount of $1470.00 for the Respondent's use and occupancy of her apartment.
Based on the foregoing, the Petitioner is granted judgment for possession of the property known as Apartment #1, located at 7 Chester Street, Glens Falls, New York, from the Respondent. Petitioner is entitled to a warrant of eviction, which shall be issued by this Court, without further stay of execution. The Respondent's affirmative defense of retaliatory eviction is dismissed.
The fair value of the Respondent's use and possession of the subject property is determined to be $490.00 per month, and the Petitioner is granted judgment in the amount of $1470.00 for the Respondent's use and occupancy of her apartment for the months of February, March and April 2016, together with a bill of costs. Counsel for the Petitioner shall provide this Court with a money judgment, with a bill of costs, on notice to Respondent's counsel. Insofar as the Petitioner was successful in its eviction proceeding, and the Respondent was successful in her counter-claim for a breach of warranty of habitability, this Court will not grant attorneys' fees, which would merely be offsetting.
All other claims of the respective parties have been duly considered and are dismissed as being without merit. Dated: April 21, 2016 Glens Falls, New York Hon. Gary C. Hobbs