Opinion
Index No. 650282/2019
01-09-2023
ZAR REALTY LLC, Plaintiff, v. Richard XIA, Defendant.
This is a residential landlord-tenant action arising from a lease between plaintiff-landlord, Zar Realty LLC, and defendant-tenant, Richard Xia, for an apartment in a condominium apartment building located at 322 West 57th Street in Manhattan.
In August 2018, parties entered into a lease agreement for the unit. The monthly rent was $19,500, and the lease term was from August 15, 2018, to August 14, 2019. Plaintiff's real-estate broker, Joseph George, marketed it as a five-bedroom apartment. In fact, the unit was a "flex" apartment that had four bedrooms but with some minor effort could be accommodated into a five-bedroom apartment. Defendant signed the lease knowing that the apartment was a "flex," but claimed that George had assured him that he could put up a tension wall to create a fifth bedroom. However, the condominium board later rejected defendant's request to do so.
Defendant also alleged other issues with the unit. First, the wood flooring was buckled in three areas of the unit; a defect known to George before defendant moved in. Second, the AC was inoperable for over three months. Third, there was a moldy refrigerator and washer, and a dryer with a broken door handle. George addressed these issues to varying degrees, and some in more timely fashion than others.
Defendant vacated the unit in December 2018, alleging that the unit was in an uninhabitable condition because many issues remained unrepaired months after he moved in. Plaintiff later advertised the vacant unit sometime "towards the spring," and eventually found someone to rent the apartment in August 2019. (NYSCEF No. 54 at 103.)
In this action, plaintiff is suing defendant for a total of $239,400 in unpaid rent and accrued fees defendant owed while occupying the premises. Plaintiff also seeks attorney fees incurred in this action. Defendant argues that the apartment was uninhabitable and not as advertised, and counterclaims for damages of at least $327,900.
Plaintiff now moves under CPLR 3212 for summary judgment in its favor. The motion is denied.
DISCUSSION
As an initial matter, defendant argues that plaintiff's motion should be denied for failure to provide a statement of material facts under 22 NYCRR 208.2 -g. But plaintiff's motion papers provide a reasonably concise statement of facts (even if not set out in a different, sequentially numbered document). (See NYSCEF No. 24-27.) And defendant has no trouble identifying the relevant factual allegations, and responds to such allegations in his responsive papers. (See NYSCEF No. 39, 52, 55.) Absent any indication of prejudice, this court declines to deny plaintiff's motion solely for its failure to comply with the formal requirements of Rule 202.8-g (a). (Cf. Amos Fin. LLC v Crapanzano , 73 Misc 3d 448, 453 [Sup Ct, Rockland County 2021] [denying motion when plaintiff's noncompliance prejudiced respondent by "offering motion papers that ... functionally bury in a voluminous record the relevant allegations of fact and their evidentiary basis"].)
A movant for summary judgment must tender sufficient evidence to make a prima facie showing of entitlement to judgment as a matter of law. (See Winegrad v New York Univ. Med. Ctr. , 64 NY2d 851, 853 [1985].) Once the movant establishes its prima facie entitlement, the opposing party must also tender evidence showing the existence of a triable factual issue, with inferences drawn in the nonmoving party's favor. (See Zuckerman v City of New York , 49 NY2d 557, 560 [1980].)
I. Whether Defendant has Raised a Genuine Dispute of Material Fact About the Warranty of Habitability
Defendant contends that plaintiff breached the apartment's implied warranty of habitability, and therefore that a genuine dispute of fact exists about plaintiff's entitlement to rent. This court agrees.
Real Property Law (RPL) § 235-b provides that in any lease agreement for residential premises there is an implied warranty of habitability under which a landlord has a nonwaivable duty to make sure that tenants are not subjected to any conditions endangering or detrimental to their life, health or safety. This duty is a condition to tenants’ obligation to pay rent. (See Park W. Mgt. Corp. v Mitchell , 47 NY2d 316, 327 [1979].) Depending on the extent of a landlord's breach, tenants may be entitled to a full withholding of rent or "an abatement in their contracted-for rent," which is measured as "the difference between the fair market value of the premises if they had been as warranted and the value of the premises during the period of the breach." ( Id. at 329.)
Here, defendant raises several issues of habitability as a defense to plaintiff's claims, most notably a buckled floor creating a tripping hazard. Uneven floors could present a tripping hazard. As shown in the photos defendant provided, the floor tiles were raised about two inches. (See NYSCEF No. 50.)
Defendant has provided evidence that the buckled-floor issue was present before lease commencement in August 2018; that plaintiff's broker was aware of the issue and was warned that the buckled floor presented a particular tripping hazard for plaintiff's young children and elderly relatives; and that the broker promised to have the floor repaired. (See NYSCEF No. 39 at ¶¶ 30-37.) After move-in, defendant also notified plaintiff that his toddler had tripped over the buckling multiple times, and that the buckling was also a tripping hazard for his 94-year-old grandmother. (See NYSCEF No. 49; see also NYSCEF No. 54 at 83, 93.) While George stated in his deposition that no one could trip over this area of the floor as nothing was "protruding out," no bright-line rule governs how high or large a defect must be to pose or increase a tripping risk. (See Camara v Costco Wholesale Corp. , 199 AD3d 509, 510 [1st Dept 2021].) In Camara , the plaintiff sued the defendant for her injury caused by tripping over the "uneven floor." The defendant moved for summary judgment, alleging the defect was trivial. The court denied the defendant's motion because it had failed to "make a prima facie showing that the defect [was], under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances [did] not increase the risks it pose[d]." (Id. ) Likewise, plaintiff here fails to show as a matter of law that the buckling floor was too insignificant to affect the habitability of the apartment.
Courts have found a "brief" buckling condition to be insignificant to habitability. In Solow , for example, the court denied the tenant's rent offset because the buckling condition was fixed by the landlord within three to four days. (See Solow v Wellner , 154 Misc 2d 737, 742 [App Term, 1st Dept 1992], affd as mod , 205 AD2d 339 [1st Dept 1994], affd 86 NY2d 582 [1995].) In this case, however, plaintiff acknowledged the bucking floor even before defendant's occupancy of the apartment, yet the issue persisted until November—three months after defendant moved into the unit. (See NYSCEF No. 39 at ¶ 35-37; NYSCEF No. 54 at 88.)
Plaintiff contends that defendant's arguments based on the buckled floor are foreclosed by the lease's "as-is" provision. (See NYSCEF No. 27 at 7; see also NYSCEF No. 32 [lease agreement].) This argument fails under RPL § 235-b (2), which voids any contractual waiver of the warranty of habitability as contrary to public policy. Moreover, the lease agreement itself contains a "warranty of habitability" term, which provides that "[n]othing in this Lease can be interpreted to mean that [the tenant has] given up any of [his] rights under [the warranty of habitability law]." (NYSCEF No. 40 at ¶ 8.)
II. Whether Defendant has Raised a Genuine Dispute of Material Fact About the (Failed) Conversion of the Apartment from Four Bedrooms to Five Bedrooms
Defendant also contends that plaintiff's asserted misrepresentation about whether the apartment could be converted into a five-bedroom space presents a material dispute of fact. This court is not persuaded.
It is undisputed that defendant had an opportunity to inspect the apartment before executing the lease. It is also undisputed that defendant was aware before executing the lease that the apartment was a four-bedroom/five-bedroom "flex" unit, such that defendant would have to install a partition to create a fifth bedroom; and that he needed approval from the condominium board to carry out this installation. And the lease contains a provision acknowledging that defendant "did not rely on anything said by Owner [or] Owner's Representative ... about the physical condition of the apartment," did not "rely on any promises as to what would be done," and would "accept [the apartment] in its present condition ‘as is.’ " (NYSCEF No. 40 at 5 ¶ 29.) In these circumstances, that the condominium board later withheld approval of the installation of the fifth-bedroom partition does not raise a fact issue about plaintiff's performance of its obligations under the lease. (See 14 Bruckner LLC v 14 Bruckner Blvd. Realty Corp. , 78 AD3d 431, 431 [1st Dept 2010].)
Relatedly, although defendant repeatedly characterizes plaintiff's property manager as having "misrepresented" in August 2018 whether defendant would be able to partition off a fifth bedroom, defendant has not presented evidence from which a reasonable jury could find that the property manager knew at the time that installing a partition would be infeasible. A good-faith prediction that does not come to pass does not constitute a misrepresentation of present fact. (See Jobe v Akowchek , 259 AD2d 735, 736 [2d Dept 1999].) That principle has particular application here, given that defendant was aware at the time that the feasibility of adding a fifth bedroom would depend on the decisions of a third party (the condominium board) beyond the property manager's control. (Cf. G & F Assocs. Co. v Brookhaven Beach Health Related Facility , 249 AD2d 441, 442-443 [2d Dept 1998] [granting summary judgment dismissing promissory-estoppel claim when the "alleged oral promise" on which plaintiff claimed to have detrimentally relied "was conditional," such that "the plaintiff's reliance upon it was not reasonable" for estoppel purposes].) No material dispute of fact exists on this issue.
Defendant also suggests in passing that "the potential failure of the Plaintiff to properly mitigate its potential damages" presents a material question of fact requiring trial. (NYSCEF No. 55 at 24.) But RPL § 227-e, imposing a duty on residential landlords to mitigate damages, applies only to "actions and proceedings commenced on or after" the effective date of the law enacting that provision—i.e. , June 14, 2019. (See L 2019, ch. 36, part M, § 29.) This action was commenced in January 2019.
Accordingly, it is
ORDERED that plaintiff's motion for summary judgment is denied; and it is further
ORDERED that plaintiff serve a copy of this order with notice of its entry on defendant by certified mail directed to defendant's last-known address.