Opinion
LT-78308-12/KI
09-04-2020
WESTBURY FLATS, LLC., Petitioner, v. Dr. Steven H. BACKER D.D.S., P.C.; "John Doe"; "Jane Doe"; and Backer/Steven, Respondents.
David A. Kaminsky & Associates, P.C., 325 Broadway, Suite 504, New York, NY 10007, (212) 571-1227, Counsel for Petitioner Robert Alan Mahler, 1350 Avenue of the Americas, Fl. 2, New York, NY 10019-4703, (212) 472-9569, Counsel for Respondent
David A. Kaminsky & Associates, P.C., 325 Broadway, Suite 504, New York, NY 10007, (212) 571-1227, Counsel for Petitioner
Robert Alan Mahler, 1350 Avenue of the Americas, Fl. 2, New York, NY 10019-4703, (212) 472-9569, Counsel for Respondent
Sandra E. Roper, J.
INTRODUCTION
This Honorable Court Decides and Orders after Bench Trial on Respondent's Abatement of Rent to underlying Summary Proceeding for Holdover together with such other and further relief deemed just and proper. For the reasons set forth below, Judgment in favor of Respondent as against Petitioner for Rent Abatement in the amount of $29,071.84 is GRANTED.
PROCEDURAL HISTORY/FINDING OF FACTS
This matter was commenced as Summary Holdover Proceeding premised upon expiration of lease commenced June 21, 2012 and has had long-winding complexed multi-jurisdictional litigious history. Respondent entered into lease for dental office with Petitioner's predecessor in interest March 20, 2002 for "the land, improvements and building located at 690-694 Flatbush Avenue, Brooklyn, New York. The Tenant shall have the exclusive right to use the basement area under the Demised Premises" (trial exhibit A). Leasehold is a six story, steel and masonry structure, with Respondent's leasehold as a one story street level store-front bridging two residential towers at both ends of leasehold as depicted by admitted photos in evidence and Respondent's Expert-Engineer No.1 (trial exhibit E, photo 1). Therefore, there is an external roof directly above leasehold premises for Respondent's dental office. Petitioner's predecessor in interest's Chapter 11 Bankruptcy Trustee confirmed Respondent's Lease to remain in full force and effect with certain corrections to the rental amounts in paragraph 2.3. and executed Deed over to Petitioner dated June15, 2005. Soon after June 21, 2012 commencement of holdover, Expert-Engineer #1, a structural engineer with 45 years' experience specializing in insurance loss inspections, was retained by Respondent, and conducted inspection of leasehold premises on July 31, 2012 and generated report, which stated in part:
" the floor had dropped one inch the partition wall above depressed area was loosened by the drop the steel column directly below the examining office has structurally failed and caused the floor to drop The roof drain leakage into the basement from the blow out clean outs must be repaired (trial exhibit E)";
and follow-up re-inspection on December 5, 2016 generated report, which stated in part:
"Since then, the owner of the building has hired contractors to do some repairs a pair of columns installed two problems with installation on the existing concrete slab, rather than on a load bearing concrete footing stress cracks in the slab If the existing column was providing no strength(removed) this new installation would cause the slab to fail... top plates not secured to the main girder no attempt made to jack the floor framing above level. The floor drop was left uncorrected the landlord had the cleanout sealed with concrete water could build up on the roof could result in a structural failure of the roof system replacement steel columns did not correct the original problem, that being the drop in the floor."
All of which Expert-Engineer #1 testified to at trial in more detail and subject to rigorous cross-examination.
Respondent moved to Dismiss Holdover for failure to provide adequate premises description, inter alia, which was denied February 1, 2013, resulting in Respondent filing appeal December 22, 2014. Matter was restored to calendar and after court settlement conference negotiations, So Ordered Stipulation of Settlement #1 (hereinafter "SOS #1"), dated August 6, 2015 (trial exhibit B) was entered into as an Addendum and Rider to March 20, 2002 Lease, delineating amended rental payments and renewal terms, as provided in relevant part, following:
1. Article 17, paragraph 17.2 of the lease dated March 20, 2002 is amended as follows:
a) The base annual rent for each "lease year" of the 1st renewal term shall be equal to the base annual rent for the proceeding lease year, plus a three (3%) percent increase each year beginning on April 1, 2016;
b) The 2nd Renewal term shall commence on April 1, 2022 and the base rent shall reset at $6,500.00 per month with increases of 5% per year, each year.
2. The rent schedule pursuant to paragraph 1A is as follows:
i. April 1, 2016 the base rent is $4,427.54 per month
ii. April 1, 2017 the base rent is $4,560.37 per month
iii. April 1, 2018 the base rent is $4,697.18 per month
iv. April 1, 2019 the base rent is $4,838.09 per month
v. April 1, 2020 the base rent is $4,983.24 per month
vi. April 1, 2021 the base rent is $5,132.73
3. The rent schedule pursuant to paragraph 1B is as follows:
i. April 1, 2022 the base rent is $6,500.00 per month
ii. April 1, 2023 the base rent is $6,825.00 per month
iii. April 1, 2024 the base rent is $7,166.25 per month
iv. April 1, 2025 the base rent is $7,524.56 per month
v. April 1, 2026 the base rent is $7,900.79 per month
vi. April 1, 2027 the base rent is $8,295.83 per month
vii. April 1, 2028 the base rent is $8,710.62 per month
viii. April 1, 2029 the base rent is $9,146.15 per month
ix. April 1, 2030 the base rent is $9,603.46 per month
x. April 1, 2031 the base rent is $10,083.63 per month
4. The Notice provision in paragraph 24.1(a) shall be amended to state that Robert A. Mahler, Esq has an address of 1350 Avenue of the Americas, 2nd Floor, New York, NY 10019
4a. The Petitioner's appeal with the Appellate Term is deemed withdrawn.
5. The Notice provision in paragraph 24.1(b) shall be amended as follows: The Landlord Westbury Flats LLC with an address of 5014 16th Avenue, suite 101, Brooklyn, NY 11204 with an additional copy to David A. Kaminsky & Associates, P.C. with an address of 325 Broadway, Suite 504, New York, NY 10007.
6. Petitioner shall straighten and secure as necessary the floor of the premises in a proper and work like manner. The petitioner shall inspect and repair the source of any leaks in the premises as is necessary including leaks in Respondent's basement.
7. Notice of Renewal option for the 2nd renewal term is hereby deemed properly given and timely given as of the correct dates as is required pursuant to the lease, which is 3 months prior to March 31, 2022.
8. The parties agree that the sum of $18,500.25 is due for all rent and additional charges to date. Broken down as follows: a) Additional security $1,397.16 b) Rent $2,389.98 balance and $1,298.58 for August 2015 and c) $10,414.93 in water charges.
8a. Upon default of this stipulation by either party this matter may be restored to the court's calendar for any and all appropriate relief on 8 days written notice.
9. This stipulation is deemed to be addendum and rider to the lease dated March 20, 2002
10. The Respondent reserves right to object to water bills amount being charged to confirm that they are correct and billed at correct rate
11. Respondent will pay August rent of $4,298.88 by 8/14/15. Respondent will pay all water bills by 9/6/15 in the sum of $10,414.53. Respondent will pay the additional security of $1,399.16 by 10/6/15and the additional rent of $2,389.98 by 10/6/15. Current rent for September and October will be paid when due.
Special note is taken that Petitioner acknowledges the same conditions remain in need of repair in SOS #1, clause 6, the straightening of the floor and repairing of any leaks, as had been reported by Expert-Engineer#1, three years earlier.
Pursuant to SOS #1, Respondent moved to Restore to Calendar on June 22, 2016, which was granted August 3, 2016, resulting in Second So Ordered Stipulation of Settlement (hereinafter "SOS #2") dated October 5, 2016 (trial exhibit C), listing the following repairs to be completed by December 5, 2016:
a) Extermination throughout Premises forthwith and as provided in the Lease.
b) Repair or maintain the main house sewer drain to prevent sewage backup - Petitioner agrees to clean the drain on a yearly basis using licensed workers.
c) The repair to the floor in treatment room #4 will be priced out and the Petitioner will either repair the floor or pay for Respondent to make the repair.
d) The Petitioner will install at least five (5) additional support columns to further support the Premises floor as may be necessary.
e) Petitioner to replace the roof of the Premises.
f) Petitioner to repair the ceiling tiles in treatment room #4, Patient bathroom, front office and other locations in premises as necessary.
g) Petitioner to repair hole in concrete in front of Premises.
Special note is again taken that Petitioner acknowledges the same conditions remain in need of repair in SOS #2, clauses b, c, d, e, and f, installation of (5) additional support columns, replacement of the roof above leasehold, repair to the treatment room floor, cleaning of the drain by "licensed workers," as had been reported by Expert-Engineer #1, four years earlier.
Thereafter, at court appearance on January 25, 2017, was negotiated another So Ordered Stipulation of Settlement (hereinafter "SOS #3") trial exhibit D, which states:
1. This matter is adjourned to 4/19/17 at 10:00 am in part 64 Room 604 for compliance.
2. Respondent shall pay U & O for February, March and April 2017 by the 10th of each month w/o prejudice.
Respondent may appear at said hearings.
3. The ECB hearing for Violation 35209348X is scheduled for 2/27/2017. The ECB hearing for Violation 35209347Y is scheduled for 4/31/2017.
4. Petitioner will provide all decisions from the above hearings to the court and Respondent upon receipt.
5. Respondent to provide access on 2/7/17 and 2/9/17. Petitioner shall inspect leaks as described by Respondent's email by 1/26/17 and repair as required by law & lease.
Special note is again taken that Petitioner acknowledges the same conditions remain in need of repair from SOS #2 which were to be repaired by December 5, 2016 and as had been reported five years earlier by Expert-Engineer#1, in SOS #3, clause 5 as to ongoing leaks and clauses 3 and 4 relating to ECB violations as set forth as follows:
ECB Violation #35209348X — Class 2 , 10/27/2016 — FAILURE TO MAINTAIN BUILDING CODE COMPLIANT MANNER, OBSERVED CONCRETE CEILING DISINTEGRATING SPALLING STEEL REINFORCEMENT DETERIORATING IN CONCRETE CEILING LOCATED AT CELLAR AT FLATBUSH AVENUE ELEVATION.RMDY: Certification Submission Date:12/06/2016; Compliance On:1/26/2017- Violation Resolved (trial exhibit L)
ECB VIOLATION #35209347Y — CLASS 1, 10/27/2016- WORK WITHOUT A PERMIT OBSERVED THREE TEMPORARY STEEL COLUMNS PROVIDED AT THE CELLAR OF THE BLDG IN ORDER TO SUPPORT EXISTING HORIZONTAL STEELBEAM. OBSERVED EVIDENCES OF FLOOR SAGGING AT DENTAL OFFICE LOCATED AT CERTIFICATE OF CORRECTION -7/12/2017
ECB VIOLATION #35209347Y -CLASS 1, 1/30/2017- FAILURE TO COMPLY WITH THE COMMISSIONERS ORDER CONTAINED IN SUMMONS/VIOLATION#35209347Y ISSUED ON 10/27/16 AND TO FILE A CERTIFICATE OF CORRECTION PURSUANT TO 28-201.1 AND 1RCNY 102-01. FOR WORK WITHOUT A PERMIT,A SCHEDULED HEARING DATE/TIME 5/08/2017 10:30; CERTIFICATE OF CORRECTION 7/17/2017
NYC WORK PERMIT DEPARTMENT OF BULDINGS, issued 7/3/2017 expires-2/4/2018
Description of Work- CONCRETE WORK NOT AUTHORIZED — CONCRETE PLACEMENT, FORMWORK, STEEL REINFORCING NOT PERMITTED
ALTERATION TYPE 2- GEN, CONSTR. APPLICATION TO LEGALIZE STEEL COLUMNS IN CELLAR WHICH SUPPORTS EXISTING HORIZONTAL STEEL BEAM.
7/10/2017- Violation # 35209347Y, for Job No: 321612340 Affidavit by Petitioner's trial witness, managing agent and board member stated, "The floor that was sagging at the dental office located at Flatbush Avenue elevation has been repaired under this application" (trial exhibit L).
Respondent testified that he continually requested Petitioner to make repairs to the roof because of falling ceilings in his dental office and floods in his leased basement. So much so, that he had to place his office machinery and other items on wooden pallets and cinder blocks in the basement to prevent water damage as also corroborated by Petitioner's photos (trial exhibit 3D; trial exhibit E). Respondent presented many admitted photos into evidence beginning from September 8, 2012 and continuing to June 4, 2019 evidencing continuing flooded basement, fallen ceiling in treatment room on machinery, water pouring out of the ceiling into dental office, water logged files in dental office, water soaked rugs in office, buckets collecting water from ceiling at front desk in office, debris from fallen water soaked ceiling in patient waiting area, exposed electrical wiring dangling from falling ceiling in treatment room, dangling exhaust fan from fallen ceiling, water-warped wooden instrument cabinet in office, fallen ceiling in office bathroom (trial exhibit J). Of particular note, photo dated August 2, 2016 shows the depression of the floor by one inch as consistent with reports, photos, findings and testimony by Expert-Engineer #1 July 31, 2012 and seven years later on February 27, 2019 by Expert-Engineer #2, with 22 years of experience in structural engineering, in his report, as trial exhibit G, set forth:
" ‘Recently installed deficient structural repairs in 2017 the Basement floor has dropped approximately 1’ " at the location directly above the failed column B10 in Figure 2. [SeeP8] The temporary shoring post has been left in place as part of permanent repair The temporary shoring post is bowing and appears to be overstressed as a result of the adjacent existing failed column B10. [SeeP9] Deflected Basement floor be re-levelled 2.2 Temporary shoring post represents a hazardous condition because it is supporting one of the floor beams of the failed column B10. The shoring post is undersized, and it cannot be used as a permanent repair."
Petitioner testifies that all repairs had been done as per stipulation and present a series of receipts and photos as corroborating proof. However, it appears that the conditions continued to persist in a state of disrepair evidenced by the continuing leaks into the dental office 2016 to 2017 in the dental office by his photos (trial exhibit J). Also, the repair to the columns were not done within code resulting in the building violations and even the leveling of floor to be jacked up to one inch as of during the trial had still not been completed. Factfinder concludes that Petitioner failed in its attempts to repair the conditions in a timely and in a safe manner as evidenced by Expert-Engineers #1 and #2 reports and testimony, and NYC Building Department violations issued. Repairs were not merely to be done for cosmetics but for safety as to the structural integrity of the leasehold and to stop interference with Respondent's quiet enjoyment of leasehold as per lease. Respondent has generally complied with its contractual lease consideration and obligation to pay rent and only ceasing to do so when Petitioner failed to remedy the conditions that presented in leasehold after Respondent's incessant demands to so do. When Respondent did withhold rent, said rent was deposited in attorney's escrow account until repairs made by licensed professionals as per Stipulations of Settlement.
The instant Bench Trial for Abatement is a result of Respondent filing subsequent Motion to Restore to Calendar on July 24, 2018 which was granted on September 7, 2018. Trial for Abatement was ordered October 3, 2018, which was adjourned several times before the commencement of trial on April 3, 2019 which continued on May 21, 2019, June 5, 2019, September 18, 2019, October 30, 2019, and concluded on December 10, 2019. Decision was reserved for submission of Post-Trial Memorandums due by March 27, 2020, with several adjournments granted due to Covid-19 Pandemic to final submission date of August 5, 2020.
DISCUSSION
It is well established law from the Kings Bench that there is the private right to contract, in the absence of legislative statutory mandate to the contrary. Unlike statutory protections afforded to residential tenants for abatements of rent for breach of warranty of habitability pursuant to RPAPL 235-b, commercial tenants do not benefit from such direct statutory protections for warranty of fitness of the tenantable leasehold. "In the absence of fraud or of a covenant, a lessor does not represent that the premises are tenantable and may be used for the purpose for which they are apparently intended" ( Welson v. Neujan Bldg. Corp., 264 NY 303, 305, 190 NE 648 [1934] ; see Widmar v. Healey, 247 NY 94, 96, 159 NE 874 [1928]; Edwards v. New York & Harlem R.R. Co., 98 NY 245, 247 [1885] ). "The implied warranty of habitability applies only to residential lease space" ( Disunno v. WRH Props., LLC , 97 AD3d 780, 780-781, 949 NYS 2d 127, 128, 2012 NY App Div LEXIS 5665, *1-2, 2012 NY Slip Op 5719, 1, 2012 WL 3024002, citing Real Property Law § 235-b ; Rivera v. JRJ Land Prop. Corp., 27 AD3d 361, 365, 812 NYS2d 63 [2006]; Polak v. Bush Lbr. Co., 170 AD2d 932, 566 NYS2d 757 [1991] )." Notwithstanding the private right to contract in our capitalistic free-market society, as a matter of public policy, federal, state, and municipal legislatures have sought to regulate this private right to contract to redress various matters for non-residential small business commercial tenants. U.S. public policy acknowledges small businesses as the lifeblood of its functioning society which builds communities both local as well as national and therefore must be protected, fostered and any undue interference with such may be regulated by the legislature ( One Wythe LLC v. Elevations Urban Landscape Design Inc. , 2020 NY Misc LEXIS 1477, *16, 2020 NY Slip Op 50437 [U], 7-8, 67 Misc 3d 1207 [A] ). Borne out of this public good benefit, was enacted the New York City Non-Residential Tenant Harassment Law June 28, 2016 and amended October 26, 2019 ( NYC Administrative Code § 22-902 [a] ). Where lessor engages in any repeated or enduring acts or omissions that substantially interfere with the operation of a small business non-residential commercial tenant's business, as in failure to repair, statutory protection is provided (NYC Admin Code § 22-9029 [a] [10]). Absent such showing of commercial tenant harassment, small business lessee nevertheless may find remedy in precedential law, which has carved out exception to private right of contract to provide commercial tenant right of action in summary proceeding for rent abatements, notwithstanding lease contractual provisions to the contrary.
An independent business with less than 500 employees (see 2019 Small Business Profile [US Small Business Administration], https://cdn.advocacy.sba.gov/wp-content/uploads/2019/04/23142719/2019-Small-Business-Profiles-US.pdf.). Parenthetically, it is timely that at the writing of This Court's Decision, Federal, State and City governments likewise, as a matter of public policy, are concomitantly redressing deleterious effects of the tragic Coronavirus Pandemic of 2020 encroaching on private rights of contract for small businesses. "Small businesses are the lifeblood of the U.S. economy: they create two-thirds of net new jobs and drive U.S. innovation and competitiveness. A new report shows that they account for 44 percent of U.S. economic activity [GDP]" (Small Businesses Generate 44 Percent Of U.S. Economic Activity [U.S. Small Business Administration] , https://advocacy.sba.gov/2019/01/30/small-businesses-generate-44-percent-of-u-s-economic-activity/ [Jan. 30 2019] ).
Quite timely as to the imperative national public policy legislative interest in the protection of small businesses, inter alia, in the midst of This Court's decision, was enacted the historically unprecedented two trillion dollar stimulus package titled Coronavirus Aid, Relief and Economic Securities Act (CARES Act) to redress the decimation of our economy by force majeure of Coronavirus Pandemic of 2020 .
A landlord shall not engage in commercial tenant harassment. Except as provided in subdivision b of this section, commercial tenant harassment is any act or omission by or on behalf of a landlord that (i) would reasonably cause a commercial tenant to vacate covered property, or to surrender or waive any rights under a lease or other rental agreement or under applicable law in relation to such covered property, and (ii) includes one or more of the following:
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Most notably is the all or nothing rule for commercial tenant rent abatement, where the lessor deprives the lessee of but a fraction of leasehold, the lessee is entitled to withhold the entire 100% amount of rent, with the theory that even where a fraction is deprived, no matter how de minimis, the contractual benefit of the bargain to lessee is breached obviating the payment of rent ( Dyett v. Pendelton , 8 Cow 727 [NY Sup Ct 1826] ). Deprivation of any portion of leasehold wholly vitiates or breaches the entire lease contract. Even where tenant retained some portion of the premises, nonetheless tenant was not required to pay for the part of the premises retained because there existed "such a disturbance, such an injury to its beneficial enjoyment, such a diminution of the consideration upon which the contract is founded, that the law refuses its aid to coerce the payment of any rent" ( id. at 731 ).
Where lessor interferes with its consideration of quiet enjoyment through its negligence, notwithstanding lease waiver clause to the contrary, courts had nevertheless applied this draconian all or nothing rule.
"It is well settled that the withholding of the entire amount of rent is the proper remedy when there has been a partial eviction by a landlord (see Fifth Ave. Bldg. Co. v. Kernochan, 221 NY 370, 372-373, 117 NE 579 [1917] ["Eviction ... suspends the obligation of payment ... because it involves a failure of the consideration for which rent is paid ... If such an eviction, though partial only, is the act of the landlord, it suspends the entire rent because the landlord is not permitted to apportion his own wrong"] ). ‘The reason of the rule is, that the tenant has been deprived of the enjoyment of the demised premises by the wrongful act of the landlord; and thus the consideration of his agreement to pay rent has failed’ ( Edgerton v. Page, 20 NY 281, 284, 18 How Pr 359, 10 Abb Pr 119 [1859] ). This is true even if a tenant remains in possession of the premises (see Barash, 26 NY2d at 83 ). This remedy of total abatement of rent for an actual partial eviction is one of very long standing in New York (see Dyett v. Pendelton, 8 Cow 727 [NY Sup Ct 1826] ) "
( Eastside Exhibition Corp. v. 210 E. 86th St. Corp. , 18 NY3d 617, 622, 965 NE2d 246, 249, 942 NYS 2d 19, 22, 2012 NY LEXIS 309, *6-7, 2012 NY Slip Op 1321, 3-4, 2012 WL 538244 ).
However, such draconian all or nothing rule ceded to a fairer proportional apportionment for partial abatement only for the portion of leasehold that lessee had been deprived of its quiet enjoyment. The Court of Appeals opining that this draconian all or nothing rule must be scrutinized as to whether the lessor's deprivation constitutes an actual or constructive eviction of any portion of the leasehold as well as whether de minimis or trivial fractional deprivation may be sufficient to establish awarding of an abatement ( Lounsbery v. Snyder , 31 NY 514, 515, 1865 NY LEXIS 69, *3-4 [1864] )
"Given the inherent inequity of a full rent abatement under the circumstances presented here and modern realities that a commercial lessee is free to negotiate appropriate lease terms, we see no need to apply a rule, derived from feudal concepts, that any intrusion—no matter how small—on the demised premises must result in full rent abatement. Rather, we recognize that there can be an intrusion so minimal that it does not prescribe such a harsh remedy. For an intrusion to be considered an actual partial eviction it must interfere in some, more than trivial, manner with the tenant's use and enjoyment of the premises"
( Eastside Exhibition Corp. v. 210 E. 86th St. Corp. , 18 NY3d 617, 623, 965 NE2d 246, 250, 942 NYS 2d 19, 23, 2012 N.Y LEXIS 309, *8-9, 2012 NY Slip Op 1321, 4-5, 2012 WL 538244 ).
How much of an intrusion by lessor warrants award of an abatement premised on partial constructive eviction? "Constructive eviction exists where, although there has been no physical expulsion or exclusion of the tenant, the landlord's wrongful acts substantially and materially deprive the tenant of the beneficial use and enjoyment of the premises" ( Barash v. Pennsylvania Terminal Real Estate Corp., 26 NY2d 77, 83, 256 NE2d 707, 308 NYS 2d 649 [1970] ). The landlord's act in covering doors leading from the rear of the store to the lobby of the building with opaque paint for the period of about a year barred prospective customers from knowing the nature of the lessee's business and interfered with possible sales ( Broadway Copy Service, Inc. v. Broad-Wall Co. , 77 AD2d 827, 827, 431 NYS 2d 13, 14, 1980 NY App Div LEXIS 12614, *2 [further examples of constructive evictions, including an open sewer, defective plumbing, and noxious gas: Barash , 26 NY2d at 84 ; Lounsbery v. Snyder , 31 NY 514, 515-16 [1865] ]]. Constructive eviction does not require the physical expulsion or exclusion of tenant from the demised premises and may occur even though the tenant abandons only a portion of the demised premises due to the lessor's act in making the excluded portion unusable by the lessee (see Minjak Co. v. Randolph, 140 AD2d 245, 248, 528 NYS 2d 554 [1st Dept 1988] ; see also Shackman v. 400 E. 85th St. Realty Corp , 161 AD3d 438, 2018 NY App Div LEXIS 3183 [1st Dept 2018] ). What is the portion of leasehold being partially constructively evicted from and how it affects the lessee's beneficial quiet enjoyment? When determining the substantiality of a partial constructive eviction, the extent of the intrusion or interference with lessee's use and quiet enjoyment of leasehold are factors to be considered based upon the very specific circumstances. Therefore, each case for commercial tenant abatement is indeed fact specific.
In the Instant matter, Respondent seeks 40% rent abatement from August 6, 2015, date of SOS #1 (trial exhibit B) to July 31, 2020, 40% = $113,959.12 and continuing until such time as the Petitioner has properly repaired and corrected the egregious and dangerous conditions — ie — water leaks dangerously improperly placed temporary columns not on slab and temporary columns that have been found to be bowing from the weight of the floor - the shoring up of the floor to correct the one inch depression of the Respondent's office floor testified to by Expert-Engineer #1 and #2. Petitioner rather argues, any alleged abatement should only be considered from October 5, 2016 SOS #2 (trial exhibit C). However, Respondent counters that his original motion for abatement was made August 5, 2015 (SOS #1) which was conditionally settled and never fully resolved where Respondent never waived his claim for abatement on that August 5, 2015 (SOS #1) date. Furthermore, Respondent states that it was Petitioner which moved July 24, 2018 to restore this case to calendar seeking date for repair compliance hearing for SOS #1, which Petitioner was granted September 7, 2018 without opposition by Respondent.
Respondent testified that out of 7 dental treatment offices, he could only use 5 treatment rooms weekly because of damage from ceiling leaks. His patients had to walk over debris to get into the office. Patients had to sit with buckets to catch leaking water from the ceiling directly in front of where they were seated, which was depicted in photos. His treatment Room 4 could not be used at all in the year 2017. Respondent, two other dentists, periodontist, and eye surgeon cared for their patients in leasehold. Respondent further testified that eye surgeon, after being in office from its inception in 2002, left some time in 2016 or 2017 because of too much disruption caused by the continuing leaks, falling ceilings, and flooding damage.
Petitioner failed to rebut the very detailed, quite stark reports with photos and detailed explanatory testimony provided by both Respondent's Expert-Engineers #1 and #2, which were corroborated and bolstered by the NYC Building Departments Class 1 and 2 Violations "dangerous for life, health, safety, property or the public interest." Therefore, factfinder, as lay person, heavily relied and credited great weight to Expert-Engineers' testimony and detailed explanations, which indeed evidenced crumbling infrastructure of this edifice creating a very dangerous building condition. So much so, factfinder concluded that the leasehold premises may indeed literally collapse as patients are being attended to in the dental office. Indeed, this is much cause for concern for public safety. The factfinder upon review of the photos and the testimony of the Expert-Engineers found a very dangerous condition, such that the columns may literally fail to bear the weight of Respondent's floor which would cave in causing not merely property damage but serious personal injury.
Particularly of note, the sloped floor in dental office had lowered one inch caused by the cross beam sagging below the floor caused by the failed crumbling B10 rusted steel column as well as the other rusting steel columns in basement, worsened by the roof drain plumbing issues that spurts water out into the leasehold's basement, particularly when there was heavy rain. So much flooding was seen on many photos by Expert-Engineers and Respondent's photos. Respondent's office items were on wooden pallets and cinder blocks. Intermittently, Respondent was besieged by water from above from the damaged ceilings and below from the flooding of the basement from the roof drain spurting water. This has been going on for quite a bit of time, from 2012 to SOS #1, #2, #3 and continuing based upon Respondent and Expert-Engineer #2 testimonies. Even in Petitioner's attempt to remedy the crumbling infrastructure through installation of columns, the remedy appeared woefully deficient. So much so that attempted fix with temporary column was found so thin that it bowed and appeared "overstressed" as testified by Expert-Engineer #2 because it could not support the weight of Respondent's office floor above (trial exhibit G).
Even though Petitioner's witness and manager claimed to the NYC building department that the floor sagging had been repaired, the floor was still lowered one inch and had not been shorn up to level the dental office's floor as testified to by Expert-Engineer #2 for his February 27, 2019 inspection. Nevertheless, it is clear that the attempt to repair even temporarily, the columns still as of conclusion of trial had not been completed to fortify the structural weaknesses caused by the rusting of the columns caused from the roof drain pipe in the basement. It matters not whether the water came from the roof or not as Petitioner seems to argue. Because Petitioner claimed it installed new roof with receipts that were not specific as to having been for roof replacement and claimed Expert-Engineers did not go to the roof. It was of no moment that Expert-Engineers were not unequivocal in that the water that was "spurting from drainpipe" was coming from the roof. The mere fact that there was water spurting out of a drainpipe is res ipsa loquitur evidence of deficiency or disrepair. The uncorroborated spontaneous implication that water may have been as a result of Respondent's washing machine in the basement was not credible. There was a 7-year period of failed repairs between Expert-Engineer #1 and Expert-Engineer #2 inspections and reports that generally found that floor still had not been leveled and was still fallen one inch.
Respondent's benefit to quiet enjoyment in use of his leasehold was indeed intermittently substantially intruded upon by the negligent repair actions and omissions of Petitioner. There is however a distinction to be made between intrusion in the dental office itself and intrusion in the basement. There must also be a distinction made between the intrusion of flooding in the basement and intrusion of structural deficiencies of the columns. Factfinder deems intrusions in quiet enjoyment of the dental office itself are more substantial partial constructive eviction than that of the intrusions in the basement. Similarly, it is deemed that flooding in the basement from the roof drain intrudes on Respondents quiet enjoyment more substantially than the structural deficiencies of the temporary columns which may not be the permanent repair as per Expert-Engineers #1 and #2 testimonies. Respondent complied with its duty to his patients' safety from the crumbling infrastructure once informing NYC Department of Buildings of his Expert-Engineers' findings. Petitioner allegedly corrected these structural deficiencies based upon its filings. Any attempts by Petitioner for shortcuts at the risk of public safety will be most severely dealt with where any person is seriously injured as a result therefrom.
Factfinder deems that Respondent provided sufficient evidence to support its prayer for relief for rent abatement as follows: from August 2015 to December 2017-$26,843.88; January 2018 to July 2019-$1,690.98 and August 2019 to December 2019-$896.98 for the total award of $29,071.84.
For the foregoing reasons, Judgment awarded in favor of Respondent as against Petitioner in the amount of $29,071.84. The Clerk of The Court shall enter Final Judgment. Respondent shall serve a copy of this Decision and Order and a copy of the underlying Judgment with Notice of Entry on Petitioner within thirty (30) days of the entry of this Decision and Order and Judgment by the Clerk of the Court and shall file proof of service thereof with the Clerk of the Court by NYS UCS EDDS.
The foregoing constitutes the opinion, decision, and order of This Honorable Court.