Opinion
Index No. 50428/23
05-03-2024
Food First HDFC, Inc., Petitioner-Landlord, v. Yolanda Turner, Respondents-Tenants.
Petitioner, pro se Rachel Nager, Brooklyn Legal Services for Respondent.
Unpublished Opinion
Petitioner, pro se
Rachel Nager, Brooklyn Legal Services for Respondent.
Hon. Elizabeth Donoghue, J.
A prior nonpayment proceeding between the parties, Food First HDFC Inc. v Turner, LT-78894-19/KI remains pending. As relevant here, the court in that case, Honorable Jack Stoller, dismissed the petition for rent, ruling that petitioner could not recover rent from January-July of 2020 based on violation of Multiple Dwelling Law 302-(3)(a); that respondent was entitled to a set-off and rent credit; and that petitioner harassed respondent. See Food First HDFC, Inc. v Turner, LT-78894-19/KI, 69 Misc.3d 1202(A) (Civil. Ct. Kings Co. 2020) Respondent's Exhibit (hereafter "R" 8), and First HDFC Inc. v Turner, LT-78894-19/KI, March 22, 2021 (R9) That case is currently scheduled for a hearing, on May 17, 2024, on respondent's motion for contempt.
In this nonpayment proceeding, FOOD FIRST HDFC, INC., ("petitioner"), sought rent for the premises located at 327 Franklin Avenue, Apt. 3D, Brooklyn, NY 11238 ("premises") from respondent(s) YOLANDA TURNER ("respondent") from March 2020 to May 2023 in the amount of $19,856.90. Respondent, by counsel, answered and interposed two counterclaims, for the breach of the warranty of habitability, and for harassment (NYSCEF Doc. 4) Petitioner withdrew its petition for rent without prejudice. (See NYSCEF Doc. 41 filed under LT-78894-19/KI)
After withdrawal of petitioner's case, respondent's two counterclaims were scheduled to be heard on December 13, 2023. The court sent petitioner a post card advising of the date; however, petitioner did not appear for the hearing which proceeded on December 13, and concluded on December 15, 2023.
HEARING
Respondent presented her case through her own testimony and Exhibits R-1 to R-27. Ms. Turner testified as to the following poor conditions alleged in her answer:
Bedroom
Respondent testified to faulty electricity in the bedroom. While it was fixed for a period of 4-5 months, it broke again. Respondent paid $900 to fix two outlets.
Bathroom
1. Leak
Ms. Turner testified as to two conditions in the bathroom. First, there is a leak in the bathroom ceiling from a hole. Respondent first noticed the leak in the ceiling in 2017-2018. HPD fixed the leak in 2017, which repair lasted a few years. When the leaks started again this year, management inspected, with HPD, in or about January 2023 however the leak has not been repaired. Even when management came into her apartment to fix the kitchen sink in the summer of 2023, petitioner never even attempted to repair the bathroom ceiling leak.
Respondent introduced a video (R17) showing active leaking from the bathroom ceiling. The video was sent to management 3 months ago. On the day of the testimony, December 15, 2023, the hole looked bigger and had gotten worse. This hole scares respondent as she is afraid of a ceiling collapse. Respondent introduced an Open "C" violation reported May 11, 2023, for evidence of water leak in the bathroom (R14(d)-7) and an Open "B" violation reported on May 11, 2023, for broken/defective plastered surfaces and paint in the bathroom. (R14(d)-6) The condition is frightening and embarrassing to live with.
2. Ventilation
Respondent introduced proof of and "A" violation for the broken or defective mechanical air vent in the bathroom dated October 25, 2019 (R14(d)-6). She testified there is no ventilation in bathroom. Five to six years ago, the vents stopped working and mold grew. Management plastered over the mold and never fixed it or conducted a mold abatement. Management said they refuse to fix the bathroom vents. The health conditions in the apartment are so bad that it is difficult to breathe. This causes anxiety and depression.
Kitchen
• Pipe leak
Respondent testified about multiple problems in the kitchen. First, she testified as to a pipe leak in the kitchen sink in June-July 2023. Respondent introduced an Open "C" violation reported on May 11, 2023, for broken or defective locknut at waste line of sink in the kitchen. (R 14(d)-7). She notified management who inspected one month later. Until it was fixed respondent had to wash dishes in the bathroom sink which was embarrassing.
• Non-working appliances
Respondent also testified that the stove/oven appliance is 19 years old and does not work. Due to a significant vermin infestation, in which rats chewed the inside of the cotton piping of the stove, respondent has had no stove for four years. Other appliance parts have been eaten by rats. Management refuses to give respondent a new stove despite numerous complaints. It is embarrassing and stressful to be without a stove because rats ate its components. Exhibit R-18, a video of the stove, was introduced, showing a rusted, stained, and corroded appliance unfit for a residence. The video depicts the condition of the stove for over 7 years, according to respondent.
Respondent has a non-working refrigerator. This appliance has been in the apartment for 22 years. It does not operate evenly when on. One cannot store food in the refrigerator, it only spoils. Petitioner has been aware of the condition of the refrigerator for 2 years. Management inspected the refrigerator but refused to give respondent a working model saying it works sometimes and that they do not have to give her a new refrigerator if it works partially. The effect of not having a working refrigerator is an embarrassment and limits her ability to keep food; it even effects respondent's ability to watch her grandchildren. It is humiliating.
Living Room
Respondent next testified as to the existence of a leak in 2019-2020 at the top of door in the living room. Water from the outside comes into the living room. Respondent informed management and while they inspected within the month, it is still leaking. When this leak began again in 2022, a worker, Lennox, fixed the leak but it returned. The leak recurs whenever it rains or snows. Respondent is forced to mop and use towels to clean up the leak. She feels defeated.
Vermin Infestation in apartment
Respondent introduced an Open "C" violation reported May 11, 2023, for evidence of roaches throughout (R14(d)-6). Respondent testified as to vermin infestation. She is very frightened of bugs and feels like her house is nasty and dirty due to the infestation. She cannot have company over. The roach infestation began 4 years ago; the mice infestation, 5 years ago. Prior to that here was no roach infestation. Petitioner's response to the vermin infestation has been insufficient. For example, Tyrone, the maintenance manager, exterminated by spraying a can of Raid and plugging some holes. Respondent paid $180 every three months, for three years, for extermination.
Common Areas
1. Broken front door, and mailbox.
Respondent also testified as to poor conditions in the common areas. The front doors to the building have been intermittently broken for 6 years; the door was fixed in early December 2023. As a result, packages go missing and strangers smoke marijuana in and sleep in the hallway. According to respondent, this presents a safety issue, especially as the building is next to a club where drugs and prostitution run rampant. Respondent submitted R-20, a November 17, 2022, Order from DHCR Denying the Owner's application to Restore Rent as the main entry door lock is missing/defective resulting in a security hazard.
Respondent's mailbox was broken causing her mail to be tampered with but was fixed in early December 2023.
2. Trash
Trash collection was moved from basement to front of the building 3 years ago. Garbage is now left in the front of the building causing rats to run into the vestibule. On one occasion in 2023, respondent witnessed vermin trying to exit the vestibule and getting stuck between 2 doors. The trash bin is broken. The problem of roaches has worsened since the trash bin broke. Respondent introduced R-19, a video of the exterior of the building showing the open trash bins and strewn garbage the front. Significantly, respondent called management about the common areas and when they did nothing, she called 311 to file a complaint. (R2) Respondent is afraid to enter the building, has heart and thyroid problems and suffers and other chronic conditions.
3. Intercom
Respondent testified that the intercom has not worked properly in 6 to 7 years. While a tenant can hear the bell ring and ask who is at the door, the tenant cannot hear the answer. A new system was installed 2 years ago, and it has not worked properly since then. The intercom has still had not been corrected.
DISCUSSION
First Counterclaim for the Breach of the Warranty of Habitability
New York State implies into every residential lease a warranty that the demised premises are habitable, RPL §235-b (1). The warranty protects against those conditions that materially affect the health and safety of the tenants or those deficiencies that in the eyes of a reasonable person deprive a tenant of those essential functions which a residence is expected to provide. Port Chester Hous. Auth. v. Mobley, 6 Misc.3d 32, 34 (App. Term 2nd Dept. 2004). A warranty of habitability defense implicates a "clear public policy interest." Windy Acres Farm, Inc. v. Penepent, 40 Misc.3d 63, 64-65 (App. Term 2nd Dept. 2013). RPL §235-b(1) extends the warranty of habitability from the demised premises itself to "all areas used in connection therewith in common with other tenants" such that they shall be free from "any conditions which would be dangerous...."
Respondent testified credibly as to the conditions alleged in her answer (NYSCEF Doc. 4). Petitioner was on notice of the conditions through complaints and violations issued by HPD. 6211 Broadway Realty v O'Neill, 65 Misc.3d 1231 (A) (NY Civ. Ct. Bx Cty. 2019 (R 14A, 14D) Violations are prima facie evidence of the condition. MDL § 328(3). Ms. Turner testified to the effect the conditions have had on her use and enjoyment of her apartment. She has been embarrassed, depressed, fearful, and unable to enjoy or share her home with her family and friends. Petitioner raised no defense to respondent's presentation.
The measure of damages for breach of the warranty of habitability is the difference between the rent reserved under the lease and the value of the premises during the period of the breach. Park West Management Corp. v. Mitchell, 47 N.Y.2d 316, 329, cert. denied, 444 U.S. 992 (1979), Elkman v. Southgate Owners Corp., 233 A.D.2d 104, 105 (1st Dept. 1996). An indispensable element of a cause of action for breach of the warranty of habitability is evidence of a rental amount, Burgos v. Harry Realty LLC, 38 Misc.3d 147(A) (App. Term 1st Dept. 2013), or a maintenance amount. Brown v. 315 E. 69 St. Owners Corp., 11 Misc.3d 1069 (A) (Civ. Ct. NY Co. 2006). (R6, R7, R20) An award on an affirmative cause of action sounding in breach of the warranty of habitability shall not be offset by rent arrears. Amodeo v. HVHC, 31 Misc.3d 148 (A) (1st Dept. 2011).
Based on the evidence, the court determines that the respondent is entitled to an abatement for the months of August through September 2020 and from December 2021 (the first month following an ERAP payment) through December 2023, the date of the hearing, for a total number of months considered to be 29 months.
In the prior case , Food First HDFC Inc. v Turner, LT-78894/19/KI, the court, following its determination that petitioner violated MDR §302-(3)(a), determined that the first available date the owner could seek rent was in August 2020. As ERAP paid respondent's rent for the period December 2020 through November 2021, the court considers the total number of 29 months of an abatement representing August 2020 through November 2020 (4 months) plus December 2021 to December 2023, (25 months) the date of the hearing.
• Respondent is not granted an abatement for faulty electricity in the bedroom, as no violation issued, and the testimony failed to clearly establish the duration of the condition. No receipts were introduced to show respondent paid for repairs.
• Respondent is awarded a 10% abatement for 12 months for the bathroom water leak. Respondent introduced an Open "C" violation reported May 11, 2023, for evidence of water leak in the bathroom (R14(d)-7) and an Open "B" violation reported on May 11, 2023, for broken/defective plastered surfaces and paint in the bathroom. (R14(d)-6)
• Respondent is not entitled to an abatement for lack of ventilation/mechanical air vent in the bathroom, (R 14(d)-6) as the violation is a class "A" non-hazardous violation.
• Respondent is entitled to a 10% abatement for 7 months for the kitchen pipe leak. Respondent introduced an Open "C" violation reported on May 11, 2023, for locknut at waste line of sink in the kitchen. (R 14(d)-7)
• Respondent is entitled to a 3% abatement for nonworking kitchen stove/oven for 29 months. Exhibit R-18, a video of the stove, shows a rusted, stained, and corroded appliance unfit for a residential living space.
• Respondent is entitled to a 2% abatement for a faulty refrigerator for 24 months.
• Respondent is entitled to an 10% abatement for 15 months for the living room leak, as the condition is intermittent and returns when it rains or snows.
• Respondent is awarded a 30% abatement for vermin infestation for 29 months. introduced an Open "C" violation reported May 11, 2023, for evidence of roaches throughout (R 14(d)-6). See also, R2 an October 30, 2023, open complaint for roach infestation. The court also relies on the abatement for vermin given on March 22, 2021, Food First HDFC Inc. v Turner, L&T Index No. 78894/19 (R-9).
• Respondent is entitled to a rent abatement of 5% for the broken front door, in the common areas for 28 months, as the door was fixed in early December 2023. Respondent submitted R-20, an order Denying the Owner's application to Restore Rent for door lock main entry due to the security hazard present.
• Respondent is awarded a 3% abatement for inadequate trash collection for 29 months. Respondent introduced R 19, a video of the exterior of the building showing the open trash bins and strewn garbage the front.
• Respondent is entitled to a 3% rent abatement for defective intercom for 29 months.
As a result of the rent reduction order (R7) the monthly rent for this entire period is $1,074.49 before factoring in an abatement award. Based on the conditions described above, the value of respondent's apartment has been reduced by 44% for 5 months (August 2020-November 2020 and December 2021); 46% for 9 months (January 2022-September 2022); and 56% for 3 months (October 2022-December 2022), 66% for 5 months (January 2023-May 2023); 76% for 6 months (June 2023-November 2023); and 71% for December 2023.
The cumulative abatement amounts to $17,825.79 and is broken down as follows:
The rental obligation from August 2020- November 2020 and December 2021 was $5,372.45. This multiplied by 44% is $2,363.88. The rental obligation from January 2022-September 2022 was $9,670.41. This multiplied by 46% is $4,448.39. The rental obligation from October 2022-December 2022 was $3,223.47. This multiplied by 46% is $1,805.14. The rental obligation from January 2023 to May 2023 was $5,372.45. This multiplied by 66% is $3,545.82. The rental obligation from June 2023-November 2023 is $6,446.94. This multiplied by 76% is $4,899.67. The rental obligation for December 2023 was $1,074.49. This multiplied by 71% is $762.89.
Second Counterclaim for Harassment
Pursuant to the Housing Maintenance Code, Administrative Code of the City of New York (NYC Admin Code) § 27-2005(d) "[t]he owner of a dwelling shall not harass any tenants or persons lawfully entitled to occupancy of such dwelling as set forth in paragraph 48 of subdivision a of section 27-2004 of this chapter. "NYC Admin Code § 27-2005(d) "protects residential tenants from harassment by building owners, "and was created to address a perceived effort by landlords to empty rent-regulated apartments by harassing tenants into giving up their occupancy rights..." Aguaiza v Vantage Props 69 A.D.3d 422, 91st Dept. 2010. As relevant here, harassment is defined in the NYC Admin Code §§27-2004(a)(48)(b), 27-2004(a)(48)(b-1), 27-2004(a)(48)(b-2), 27-2004(a)(48)(d), and 27-2004(a)(48)(g), as any act or omission by owners intended to cause tenants to vacate their apartments or to surrender or waive any rights in relation to their tenancy and includes the use of force or threats, repeated failure to correct "B" or "C" violations, or other repeated acts or omissions of such significance as to substantially interfere with or disturb the comfort, repose, peace of quiet of a tenant.
Respondent proved petitioner's pattern of harassment on for numerous fronts, highlighted below. This is the second finding of harassment against this tenant. See the prior court's March 22, 2021, finding of harassment and penalty of $2,500.00 (R 4).
Respondent's credible testimony demonstrated conditions of disrepair and service outages, proving harassment. NYC Admin Code §§27-2004(a)(48)(b), 27-2004(a)(48)(b-1), 27-2004(a)(48)(b-2). Respondent submitted proof of complaints and HPD violations (R2, R3, R 7, R14A 1-14, R14D 1-19) including a leak and lack of ventilation in the bathroom; a kitchen leak and faulty kitchen appliances; water intrusion in the living room; vermin infestation in the apartment and common areas, as well as broken front door, intercom, and inadequate trash collection.
Petitioner commenced baseless nonpayment proceeding(s) contrary to NYC Admin Code §§27-2004(a)(48)(d), based on the demand for rent not owed. (R25, R8, R9) Petitioner refused to correct its rent ledger (R12-a, R-b, R12-, R-23) to accurately reflect that Court's abatement award, and DHCR's rent reduction order. (R7, R13)
Significantly petitioner reported respondent to a credit reporting agency inaccurately claiming respondent owed a debt, which negatively impacted respondent's credit score. (R10, R12-a, R12-b, R 12-c, R 15, R 15A page 8, R 15 B page 10, R 15C 1-9)
Respondent's efforts to correct petitioner's rent records were ignored. After receiving a text message from the petitioner's management office that her credit would be affected. (R23), respondent contacted Julianna, the individual handling petitioner's rent records, on 3 or 4 occasions to correct the amount of the rent. She promised to get back to respondent and said she would handle it but did not. Respondent introduced Exhibit R-12A, which reflected an amount of $21,418.85 owed through May 2023; respondent asked for a rent statement as the amount was inaccurate but did not receive one from Julianna. In addition, Exhibit R-12b, the July 2023 statement, contains unspecified charges of $425; Exhibit R-12C, the September 2023 statement, reflects unspecified charges of $275. Petitioner inaccurately reported past due rent to Equifax in the amount of $23,884 for April 2022 rent (R 15 (a)8, R-10)
Significantly the harassment statute provides for a rebuttable presumption that such acts or omissions were intended to cause such person to vacate such dwelling unit or to surrender or waive any rights in relation to such occupancy. Petitioner was given notice of counterclaims and the court hearing yet failed to come forward to present any defense to these claims, proving respondent's claim of harassment. As a result of petitioner's actions and omissions, respondent's comfort, peace, quiet enjoyment, and repose have been interfered with. Each of these acts and omissions have sought to have respondent waive her right to safe and habitable housing and therefore, her rights related to her occupancy.
Based on the foregoing, the court finds that petitioner has harassed respondent is violation of the NYC Admin Code §27-2005(d). Such harassment constitutes a "Class C" and immediately hazardous violation under NYC Admin Code §27-2155(m)(1) warranting imposition of a penalty in accordance with the Housing Maintenance Code.
Accordingly, it is
ORDERED, that on respondent's first counterclaim for the breach of the warranty of habitability, the court determines the value of respondent's apartment has been reduced by: 44% for 5 months (August 2020-November 2020 and December 2021) 46% for 9 months (January 2022-September 2022); and 56% for 3 months (October 2022-December 2022), 66% for 5 months (January 2023-May 2023); 76% for 6 months (June 2023-November 2023); and 71% for December 2023, and it is further
ORDERED, that the court awards respondent a judgment on her first counterclaim for the breach of the warranty of habitability in the amount of $17,825.79, without prejudice to any rent arrears that remain, and it is further
ORDERED, that on respondent's second counterclaim, the court makes a finding that petitioner has engaged in harassment of respondent in violation of NYC Admin Code §27-2005(d), and it is further
ORDERED that HPD place a "C" violation for harassment on the subject premises, upon service of a copy of this order together with notice of entry by any party on HPD, and it is further
ORDERED that the court directs petitioner to cease all harassment of respondent, and it is further
ORDRED that, based on the court's second finding of harassment, the court awards HPD civil penalties against petitioner in the amount of $5,000.00 to be enforced as against the building, at Block 1954, Lot 2 of the borough of Brooklyn, and it is further
ORDERED that petitioner is liable to respondent for compensatory damages in the amount of $1,000.00, and it is further
ORDRED attorney's fees be submitted for a determination on the fees pursuant to NYC Admin Code §27-2115(o).
This constitutes the decision and order of the court.