Opinion
6236905.
Decided June 8, 2005.
After trial in this summary nonpayment proceeding, and based upon all of the credible documentary and testimonial evidence, and after due deliberation, the court finds and determines as follows:
Petitioner commenced this summary non payment proceeding in March 2005. Petitioner is the owner of premises located at 461 Lincoln Place, Brooklyn, NY Respondent is the tenant of the second floor apartment located in said premises (hereinafter "the subject apartment"). The subject apartment is located in a building that is not a multiple dwelling and is not subject to rent regulation. The petition alleges that respondent has failed to pay rent for months of July 2004 through March 2005 totaling $9,000.00. Respondent occupies the subject apartment pursuant to a written lease agreement which ends on June 12, 2006. The monthly rent for the subject apartment is $1,000.00. Respondent alleges a breach of the Warranty of Habitability and seeks a rent abatement. Petitioner is represented by counsel and respondent appears pro se.
Petitioner testified that respondent owed $11,000.00 in rent through May 11, 2005. Approximately 3-4 months after respondent stopped paying rent he testified he had a conversation with respondent who demanded a discount in the rent and a five year lease.
Respondent testified that he lived in the subject apartment for five years and acknowledged owing $11,000.00 in rent arrears. Respondent alleges that he was withholding rent due to petitioner's failure to make repairs. Respondent testified that the conditions alleged in the 2003 stipulation of settlement continue to exists. Respondent further testified that the following conditions have exited in the subject apartment since 2003 and many have existed since the date he moved into the apartment: Windows cannot be opened; bedroom and closet doors are not aligned; leaks from bathroom toilet and sink and under the kitchen sink; broken windows; water damage on ceilings throughout; bathroom ceiling deteriorating; mice and roach infestation; insufficient heat; heating does not circulate properly and holes in walls. Respondent alleges that he repeatedly notified petitioner who failed to respond to his complaints. Commencing in December 2004 respondent made repeated complaints to the NYC Department of Housing Preservation and Development (DHPD) regarding the condition of the apartment. DHPD issued violations against the owner. Respondent testified that a potential roommate was unable to move into the apartment because he was locked out of the apartment and because of the condition of the apartment.
In a prior proceeding (Index No. 55969/03) the parties entered into a stipulation of settlement dated March 18, 2003 wherein respondent acknowledged owing $4,800.00 as rent through June 12, 2003 after a $1,600.00 rent abatement for petitioner's breach of the Warranty of Habitability. Petitioner agreed to inspect and repair noise from below respondent's apartment, Bathroom toilet and faucet leaks, re-caulk the bathroom and repair light switches and plat for hallway light. In April 2003 respondent moved to restore the proceeding alleging that petitioner had failed to comply with the terms of the stipulation of settlement. On April 8, 2003 an order was entered providing for access dates without a determination of fault. On April 21, 2003, May 19, 2003 and July 17, 2003 respondent's Orders to Show Cause alleging repairs were not made were denied due to respondent's failure to appear.
Mr. Errol Lewis testified that he is a friend of respondent and they attend the same church. He was invited to share the subject apartment with respondent for a monthly rental of $500.00. He acknowledged that he did not inspect the apartment before agreeing to move into the apartment. He inspect the apartment on May 2, 2005 and found several items in need of repair. He could not say how long the conditions existed for since he had never before been in the apartment. He acknowledged having discussed his testimony with respondent before coming to court. Mr. Lewis never moved into the subject apartment.
Michael Lee testified that he too was a friend of respondent from church. He went to the subject apartment at respondent's request on the date he gave testimony for purposes of inspecting the apartment and giving testimony. He observed som conditions in need of repair. He had not been in the apartment prior to the court date and therefore was unable to testify regarding how long the conditions existed.
Petitioner Pedro Tavarez testified that he received numerous notifications from DHPD regarding complaints filed by respondent. That he made numerous attempts to cooperate with respondent but was refused access to the apartment. On the rare occasions that his workers were given access respondent insisted they leave the apartment before work was completed. He testified that respondent began complains after the commercial establishment on the first floor of the subject building closed and petitioner was making plans to make renovations to the store. Respondent insisted on petitioner giving him a five (5) year lease and install a new boiler in the building. Respondent threatened to file complaints with DHPH every day and twice per day unless his request is granted.
On March 2, 2005 petitioner tape recorded a conversation he had with respondent. Respondent is heard insisting on a five year lease and a new boiler before he will cooperate with petitioner. Petitioner requested access for his plumber to the apartment the following day to investigate respondent's heat complaints. Respondent stated that until petitioner signs a five year lease and installs a new boiler access will not be provided and he will call and complain to DHPD everyday twice per day. He stated that he will not take no for an answer, will not give the plumber access and will have DHPD do the work at the building at petitioner's expense. Respondent's current lease has approximately one and one half years before it expires Respondent stated that if his demands are met he will cooperate with petitioner and "help him out" with DHPD. Respondent threatened that failure to give him what he request petitioner will be making war with him, he will continue to file complaints and petitioner will be fined by DHPD.
Petitioner further testified that on March 11, 2005 he was expecting repairman sent by DHPD. He received a telephone call that someone had broken into the commercial space at the subject building. Upon arriving at the building he saw two workers from Pacific Petroleum in the premises. In addition, he observed respondent leaving the premises with a sledge hammer and respondent was carrying a backpack containing a circular boiler pump. Police and DHPD were called and it was learned that the workers were sent to the premises by DHPD and were instructed by respondent, who represented himself to be the owner, to cut the locks on the gate leading to the commercial space in order to gain access to the boiler. Criminal proceedings were commenced and are pending against respondent. Respondent refused to answer any questions regarding the March 11th incident, asserting his right against self incrimination. In addition, petitioner alleges that in April 2005 respondent intentionally damaged the lock to the entrance to the subject building. Petitioner installed new locks on three separate occasions and respondent was provided a key. Petitioner introduced one lock in evidence and it is apparent that the lock was damaged by striking it with a hammer or a like instrument. Respondent alleges that he was locked out of the apartment during this period.
An employee of Pacific Petroleum, John Miller, testified that he is a service technician with 17 years experience installing and repairing boilers. Pacific Petroleum was retained by DHPD to perform emergency repairs in the subject building. On March 11, 2005 he was sent to the subject building to make repairs. He arrived at the building at approximately 10 A.M. He was directed by respondent, who he was led to believe was the owner, to cut the locks to the commercial space in order to gain access to the boiler. Respondent followed him and a co-worker to the boiler room. He observed that the hot water was on and the system was working. He further observed that the system had a high velocity circulation pump appeared which appeared to be new. He informed respondent of his observation and respondent insisted that the pump be changed in any event. He installed a new circulation pump and respondent put the old pump on his backpack. Mr. Miller testified that respondent appeared to be in a rush and ran out the building with the pump in his backpack.
Mr. David Graham testified that he was employed as a plumber by Stanley Lewis Plumbing and Heating. He has 25 years experience working with boilers and went to the subject building at petitioner's request due to a complaint from respondent alleging no heat. He inspected the boiler approximately six times between December 2004 and February 2005. He checked the controls and flow of water and found them to be working properly. Respondent continued to complain so the petitioner, although not required, had a new high velocity circulation pump installed. Mr. Graham testified that he was denied access to the subject apartment and was unable to check the thermostat in the apartment. In December 2004 he made arrangements with the respondent to gain access to the apartment. No one answered the door at the previously scheduled time. On March 26, 2005 he was at the building with the petitioner and an inspector from DHPD. He saw respondent at the window to the subject apartment but respondent failed to answer the door when access was attempted.
The warranty of habitability implies that the premises are fit for human habitation and for use reasonably intended by the parties and free from conditions that are dangerous to life, health or safety. There are three components to the warranty of habitability: 1)the landlord is required to keep their residential properties free of conditions that are dangerous to life health or safety; 2) The landlord has a duty to maintain residential property in a habitable and usable fashion; and 3) in accord with the uses reasonably intended by the parties. Park West Management Corp. v. Mitchell, 47 NY2d 316 (1979). Among the remedies for a landlord's breach of the warranty of habitability is a rent abatement. Bartley v. Walentas, 78 AD2d 310 (1st Dept., 1980). However, the landlord must have notice of the conditions in need of repair, Sanchez v. Badami, N.Y.L.J. 7/8/91, p. 24, c. 6 (App. Term 9th 10th Jud. Dists), tenants are not entitled to rent abatements for conditions they have created Srahl Assocs. Co. v. France, N.Y.L.J. 11/7/97, p. 22, c. 2 (App. Term 1st Dept.) and the tenant must provide access to the landlord for purposes of making repairs Marz Realty Inc. v. Reichman, N.Y.L.J. 1/30/02, p. 25, c. 3 (App. Term 2nd 11th Jud. Dists.).
In the instant case the court finds that respondent deliberately failed to provide access to the petitioner and his workers for purposes of inspecting and making repairs and created some of the conditions he complains about. Although there are conditions in the subject apartment in need of repair respondent has made it impossible for petitioner to correct them. This is evident from the credible testimony of Mr. Graham and the parties March 2, 2005 conversation where respondent refused to give access unless petitioner meets his demands of a five year lease and a new boiler. The court further finds that respondent was the cause of the locks being damaged requiring replacement and that respondent removed the replaced circulation pump without authority. The court also finds respondent's testimony to be evasive and not credible. Respondent refused to testify regarding the March 11, 2005 occurrence asserting the privilege against self incrimination. It is settled that in a criminal case no unfavorable inference may be drawn from the failure of the accused to testify however in a civil case an unfavorable inference may be drawn against a party from the exercise of the privilege against self incrimination without regard for the reason for the silence. Baxter v. Palmagiano, 425 U.S. 308; Marine Midland Bank v. John F. Rsso Produce, 50 NY2d 31 (1980); Noce v. Kaufman, 2 NY2d 347; Fritz v. Fritz, 88 App. Div. 2d 778; 54 West 16th Street Apts. v. Dawson, 179 Misc 2d 264 (Civ. Ct., NY Co., 1998); Vesey Realty Co. v. Doherty, 120 Misc 2d 721 (Civ.Ct., NY Co., 1983);. "While a party may not be compelled to answer questions the court finds the testimony of petitioner and Mr. Miller regarding what occurred on March 11, 2005 to be credible. The court further finds that respondents's testimony regarding this issue would not have been helpful to his case.
The court concludes that respondent has failed to sustain his burden to prove that petitioner has breached the Warranty of Habitability as it relates to respondents occupancy of the subject apartment.
Accordingly, petitioner is awarded a final judgment in the amount of $11,000.00 representing rent due through May 11, 2005. The warrant of eviction shall issue forthwith and execution id stayed for five days.
The foregoing constitutes the decision and order of the court.