Semans v. Kennedy
(Civ. Ct. N.Y. Cty. 8/21/02)
We represented: Petitioner
Ernest J. Cavallo, J.H.C.
DECISION and ORDER Petitioner, the Semans Family Limited Partnership ("SFLP"), commenced this residential nonpayment summary proceeding against respondents Michael J. and Eleanore B. Kennedy ("The Kennedys") to recover rent arrears for apartment 6 ("Apartment'') in the building located at 1009 Fifth Avenue, New York, NY 10028 ("Building") for the period of June 1997 through April 30, 2002 and to recover HVAC charges and Consolidated Edison charges as additional rent. The date of the commencement of the Kennedys' obligation to pay rent under the lease ("Lease") is in dispute as is the date of the rent increase pursuant to the Lease. In addition, the Kennedys argue that SFLP is not entitled to recover rent for the period of December 1996 to June 1998 because SFLP failed to obtain a certificate of occupancy for the Apartment. Even if SFLP is entitled to collect rent, the Kennedys argue that they are entitled to an abatement under MDL 302(a)(3) and for breaches of the warranty of habitability. They also seek reimbursement for the cost of the mechanical privacy screen which they installed on the seventh floor of the Apartment under the affirmative defense of repair and deduct. SFLP acknowledges that there were problems in delivery of the Apartment, but denies that there were any rent impairing violations or conditions that justify an abatement. The court held a trial on October 17, November 7, 9, 13, December 5, 6, 2001, and January 8, 9, 24, 28, February 4, 25, March 12, April 16, 17 and 18, 2002, which an official court stenographer recorded. The Kennedys moved out of the Apartment as of April 2002 and are no longer in possession. After considering the testimony of Petitioner's witnesses, Paul Irvine, Mary Semans, Iver Iverson, Ray Byrne, Adele De Cruz, Timothy Lee, Shawn Young, Gerald Connell, George Cambourakis, Marvin Wassoff, John Spuches, Derek Stenborg, and James Semans, and Respondent's witnesses, Susan Anthony, Michael Kennedy, Eleanore Kennedy, and Jay Butterman, as well as the documents admitted as evidence, including photographs, a video tape, the court's on site inspection, and post trial briefs submitted by the parties, the court makes its findings of fact and law.
The Building is a landmark structure known as the Duke/Semans House. SFLP decided to renovate and remodel the Building in the early 1990s. SFLP created an apartment on floors one through five which Mr. Bruce Kovner ultimately rented ("Kovner Apartment"). On the fifth floor, the SFLP keeps a room ("Quarters"), which serves as a pied a terre for members of the Semans family when they are in New York and gives them a place to store their family's historical archives. There is additionally a medical office on the ground floor. The Apartment is a duplex, consisting of the sixth and seventh floors of the Building. Prior to the renovation, the sixth floor contained small rooms and storage areas and the seventh floor was an attic. The SFLP designed the sixth floor to contain a living room, dining room, kitchen and two bedrooms with the seventh floor serving as a huge master suite consisting of a solarium under a series of new skylights, his-and-hers bathrooms and closets and a raised platform area under the mansard roof at the west end of the floor for the bed. The Kennedys had a private elevator to service the Apartment. The Kovner Apartment has a separate elevator which was not accessible by the Kennedys once Kovner moved into his apartment.
First, the court must determine when the Kennedys' obligation to pay rent began pursuant to the Lease. According to the Kennedys, they were not obligated under the Lease terms to pay rent until September 1, 1997 when they claim that they took possession. SFLP claims the Kennedys were required to pay rent beginning November 1, 1996. The parties negotiated the Lease while SFLP was renovating the Apartment. The Lease contains a clause which required the Landlord to perform certain work ("Tenant Improvements") (see Lease, Paragraph 42).1 The Lease also provides for completion of the Tenant Improvements not later than September 1, 1996, defining substantial completion as:
"the earlier of the date (the "Commencement Date") upon which the Tenant may either (i) occupy the demised premises after the substantial completion of the Tenant Improvements in accordance with this Lease without unreasonable interference from the Landlord (it being understood the punch list correction of minor construction flaws by Landlord shall not be deemed unreasonable interference) or (ii) have access to the demised premises at Tenants request, subject to Landlord's reasonable approval not to be unreasonably withheld, for purposes of completing additional improvements at the demised premises, subject to Landlord's approval both as to the scope, nature and completion of such work and the contractors performing same subject to and otherwise in accordance with this Lease. Landlord shall complete the Tenant Improvements not later than September 1, 1996, subject to terms and conditions beyond its reasonable control (the "Completion Date")."
The Lease additionally states that:
" . . . Rent shall be payable as of the beginning of the Term unless Landlord is unable to give possession. Rent shall then be payable as of the date possession is available . . . " (Lease, Paragraph 2).
Each party spent a great amount of time and effort to substantiate its position. However, none of the witnesses gave a clear, complete, coherent version of the events. Time dulls memory; anger warps perception. Too many years have passed and memories have dimmed. Too much rancor between the participants has taken its toll on their objectivity. The SFLP called many witnesses, but Ms. Semans was vague and appeared unprepared; Mr. Iverson was defensive, frustrated and confused. The Kennedys impeached Mr. Irvine on his memory of their heat complaints. Some of the rebuttal witnesses contradicted each other on dates which are very important in this case. Susan Anthony was very certain and aggressive on the witness stand, but she clearly did not like the petitioner's agents despite her protestations to the contrary. Ultimately, her testimony was wrong on time sequence. Mr. Kennedy frequently admitted that he had no memory on many questions on cross examination. The Kennedys did not rebut a great deal of the SFLP testimony. Mrs. Kennedy did not testify on direct although she had information concerning events in which she alone participated. The most helpful evidence to the court were the letters and documents because they were contemporaneous records. Although the Court does not believe that anyone lied under oath, the unreliable memories and the hard feelings between the people make fact finding in this case particularly difficult. The Court has evaluated the evidence and accepted what it finds to be true and logical and rejected the rest.
The court heard lengthy testimony on direct and on rebuttal from Mr. Iver Iverson ("Mr. Iverson"), SFLP's managing agent, who was in charge of construction and the Building manager. He conceded that the Apartment was not ready on September 1, 1996. However, he testified that by October 25, 1996, all of the Tenant Improvements were substantially completed except for installation of a stereo cabinet,2 installation of a mechanical privacy blind/sun screen on the seventh floor skylight, and fourteen 18-inch strips of aluminum temporarily missing from the floor. He denied that he or the SFLP in any way delayed the completion of the Tenant Improvements. Mr. Iverson testified that the delays on these items were all caused by the Kennedys or their decorator, Ms. Susan Anthony. He acknowledged that there was a major disagreement between the SFLP and the Kennedys in the beginning of November and that he sent a letter in which he states he "changed the key cylinder to the elevator to deny admittance to the Apartment until December 1st." Furthermore, Mr. Iverson stated that any visits to the Apartment would have to be scheduled through the SFLP's lawyer, David Thompson. Lastly, Mr. Iverson refused to accept deliveries or allow installations or contractors in the Apartment. Although he stated that the SFLP and its lawyers eventually overruled him, he did implement a sign-in book for everyone who went to the Apartment and remained in charge of the access to the Apartment throughout the winter of 1996-1997.
Mr. Iverson was the man in the middle. The SFLP gave him a job to do that was either beyond his ability or means provided. He had absentee principals represented by local attorneys, unreliable contractors and demanding tenants who came with a decorator that he hated. The project did not go well from the time the Kennedys signed the Lease until he left the SFLP employment in 1998. He blamed everyone except himself, yet he was the managing agent. He complained that any problems with the kitchen were the result of the Kennedys' contractor. However, that contractor later testified that he was hired by the SFLP. He stated that the Kennedys prevented him from installing the privacy shade/sun screen until their furniture was delivered through the skylight in the solarium. He had no explanation as to why he did not install the shade during the last two weeks in March after the furniture delivery but before the Kennedys returned from Europe.
Susan Anthony ("Ms. Anthony") was in charge of preparing the interiors of the Apartment for the Kennedys' occupancy. Ms. Anthony actually began the project as a decorator employed by Ralph Lauren, Inc. However, later in the project, she stopped working for Ralph Lauren, Inc. and started working for the Kennedys directly.
Originally, Ralph Lauren, Inc. intended to use the Apartment for a photo shoot. She had strict deadlines for completion to do the shoot which she did not meet. When she ended her professional relationship with Ralph Lauren in December 1996, she testified that she finished the Kennedy apartment without charging the Kennedys a fee. She testified about SFLP's failure to do quality work or to complete the renovations to the Apartment on schedule. When she first visited the Apartment in September, 1996, she saw construction debris and garbage, broken windows, and pieces of wood piled throughout the sixth floor. Also, she testified, there were no working bathrooms and the sink in the Kennedys' daughter's bathroom was missing. At that time, she could not gain access to the Apartment without Mr. Iverson present. This was, in part, because the Kennedys' elevator was not operational and so the other elevator had to be used to reach the sixth floor. Ms. Anthony testified that Mr. Iverson was difficult to reach and not always available to allow her into the Apartment. As a result, she claimed that she was not able to measure for carpeting and furniture until the end of October 1996. She testified that through December 1996, the 7' floor was raw space and there were no working bathrooms and no heat. On the sixth floor, the kitchen did not have lights, electric outlets or a floor through December 1996. The kitchen appliances, Ms. Anthony testified, although placed in the kitchen, were not installed with plumbing connections until July 1997.
Ms. Anthony's testimony was questionable. She denied having hard feelings toward Mr. Iverson, but it was clear to the court that she did not like Mr. Iverson and was less than candid when asked on re-cross examination. She was professionally embarrassed by Mr. Iverson because he made it difficult for her to do her job. Although the Apartment may have been messy while it was under construction, the court fails to see how it was impossible to measure, as the walls and windows were not moved. In addition, the court questioned Anthony's testimony regarding dates. She claimed that the kitchen was not hooked up until July 1997. However, on rebuttal the SFLP called the kitchen contractor, Tim Lee, who testified credibly that the kitchen was completed by October 15, 1996. He brought a paid invoice, dated October 18, 1996 in addition to a photograph taken in October 1996 showing installation of the kitchen cabinets. Furthermore, the court found the testimony of another rebuttal witness, Derek Stenborg, credible. He finished the glass tiles on the kitchen floor in October 1996. Lastly, Marvin Wassoff, the plumbing contractor, testified credibly that the kitchen plumbing was hooked up before November 1, 1996.
Mr. Kennedy testified about his mounting frustration with the SFLP in the fall of 1996 and spring of 1997. He introduced many letters to support his position that the SFLP was unable or unwilling to complete the "tenant improvements" listed in the Lease. He also testified that the SFLP through its attorneys and agents requested that the Kennedys delay occupancy so that the SFLP could concentrate on the Kovner Apartment. The Kennedys had another apartment and Kovner did not. Furthermore, Mr. Kennedy testified that Iverson told him that the SFLP was short of cash and the Kovner apartment would bring more rent than the Apartment thereby improving the SFLP cash flow. Mr. Kennedy agreed to wait to occupy the Apartment and the letters between the parties stopped until March 1997. He corroborated much of Susan Anthony's testimony concerning the condition of the Apartment and the slow progress. The correspondence between the SFLP's prior counsel, David Thompson, and Mr. Kennedy, shows that the SFLP intended to have the Apartment ready by November 1, 1996, but, after Mr. Kennedy inspected the Apartment, he refused to move in before December 1, 1996. (See Exh. 1, J). In addition, David Thompson by letter dated November 4,1996, acknowledged that the SFLP had not substantially completed the apartment and restricted access to the Kennedys. (Ex. K). Instead, all visitors and workers had to sign in and out in a book controlled by SFLP. Mr. Kennedy got keys and the elevator security codes to the apartment in spring of 1997. Ultimately, Mr. Kennedy testified that he moved his household into the Apartment in June 1997, but they fled because of problems with the elevators and the HVAC units. Mr. Kennedy testified that the heat in the summer was unbearable without the privacy blind/sun screen.3 Mr. Iverson did cover the skylight first with a screen made from tulle material and rigged to a pulley system, which was thin and could not be raised and lowered properly. Eventually, after they had begun occupying the Apartment, the Kennedys installed their own mechanical privacy shade at a cost of $25,000.00 in 1998.
The Lease provides that the first date of occupancy is the earlier of when the Tenant Improvements are complete or when the tenant has access to the Apartment for personal improvements and further provides that the tenants are responsible for paying rent once they have possession. Based on the lack of the privacy screen/sun shade alone, the court finds that, pursuant to the Lease, the SFLP did not complete the Tenant Improvements/renovations before the Kennedys moved into the Apartment. Because the shade was not installed before the Kennedys moved in, the Kennedys did not have occupancy based on the completion of the Tenant Improvements.
Having determined that the Tenant Improvements were not complete before the Kennedys moved in, the court looked at when the SFLP first began to provide the Kennedys access to the Apartment. Contrary to the SFLP claim, the Kennedys did not have any indicia of possession as of November 1, 1996. They had neither keys nor elevator security codes at that time. The sign-in book has entries through February 1997. That is compelling evidence that the SFLP was still in control. The airlifts to move the Kennedys' furniture and personal items into the Apartment were scheduled for January 25, 1997 and then February 7, 1997. The SFLP cancelled those dates because the Apartment was not yet ready. The Kennedys finally airlifted some of their possessions into the Apartment on March 17, 1997 and moved their nanny in. The unrebutted telephone records show phone usage consistent with occupancy beginning on or about March 17, 1997. Through their correspondence, in a letter dated April 24, 1997, the Kennedys stated that they planned to move in May 1, 1997 after airlifting their "major" pieces of furniture in April, 1997. (Ex. P). However, it is clear that the nanny was already installed as of March 17, 1997. As their agent, the installation of the nanny was tantamount to their own possession of the Apartment. As a result, the first date of substantial completion under the Lease was when the Kennedys took possession of the Apartment on March 17, 1997, and by default had access. Therefore, the court finds that the Kennedys' obligation to pay rent started as of March 17, 1997.
As to when the increase from $15,000 per month to $17,000 per month was supposed to take effect, the Kennedys argue that the date of substantial completion affects the date on which the Kennedys rent increased. Paragraph 40 of the Lease rider states that the yearly rent shall be in the following amounts:
"1.Year one: (commencement date – August 31, 1997): $180,000 – in the event that the Commencement Date shall be earlier than August 31, 1996, the Annual Rent payable for year one shall be increased ratably by an amount equal to the product of (x) a fraction the numerator for which is number of days that the Commencement Date proceeds August 31, 1996 and the denominator in 365, multiplied by (y) $180,000 2. Year two: (Sept. 1, 1997 to August 31, 1998): $180,000 3. Year three: (Sept. 1, 1998 to August 31, 1999): $180,000 4. Year four: (Sept. 1, 1999 to August 31, 2000): $180,000 5. Year five: (Sept. 1, 2000 to August 31, 2001): $180,000 6. Year six: (Sept. 1, 2001 – August 31, 2002): $204,000 7. Year seven: (Sept. 1, 2002 – August 31, 2003): $216,000"
The Lease continues, stating that the monthly rent payable:
"shall be one twelfth of the above specified yearly rent and shall be the following amounts for the following annual periods: 1. Year one: $15,000 2. Year two: $15,000 3. Year three: $15,000 4. Year four: $15,000 5. Year five: $15,000 6. Year six: $17,000 and; 7. Year seven $18,000"
From the language of the lease, the terms are clear. Year one ends on August 31, 1997 and there is no qualification which would extend that time. Therefore, the court finds that the rent increased on September 1, 2001 to $17,000.00 per month. As for the HVAC and Consolidated Edison charges, the Lease provides for those charges as additional rent in paragraph 3. The SFLP proved the HVAC and Consolidated Edison charges which were unrebutted and therefore the SFLP is awarded those charges as additional rent.
The Kennedys argue that the SFLP is barred from recovering any rents from the initial occupancy date, March 1, 1997 until the temporary certificate of occupancy was obtained in June, 1998, with the exception of seven months that were paid during that time. Under Multiple Dwelling Law §302, an owner cannot recover rent when an apartment in a multiple dwelling is occupied without a certificate of occupancy. Multiple Dwelling Law §302[l][b]; § 301. A "multiple dwelling" is defined as a "dwelling which is either rented, leased, let or hired out, to be occupied, or is occupied as the residence or home of three or more families living independently of each other." Multiple Dwelling Law § 4 (7). Determining whether a building constitutes a multiple dwelling is a question of fact. See Sima Realty LLC v. Philips, 282 A.D.2d 394 (2001).
Here, the SFLP pleads in its petition (paragraph 14) that the Building is a multiple dwelling and that it filed a multiple dwelling registration which it put into evidence as part of its prima facie case. The certificate of occupancy certifies three apartments for residential dwelling: the Kovner Apartment, which is made up of the first through fifth floors, the Kennedy Apartment, which is made up of the sixth and seventh floors, and the Quarters constructed for the Seaman family, which is located on the fifth floor. As a result, the court finds that the Building does constitute a multiple dwelling.
The question then becomes whether SFLP can collect rent during the time period that it did not have a certificate of occupancy. MDL §302 states that no rent shall be recovered for a period of time when a dwelling is "occupied in whole or in part for human habitation in violation of section three hundred one." Section 301 provides that multiple dwellings cannot be occupied until a certificate of occupancy has been issued, providing that the dwelling "conforms in all respects to the requirements of this chapter." MDL § 301(1). In addition, it provides for a temporary certificate of occupancy as long as the dwelling has been inspected and "temporary occupancy will not jeopardize life, health or property." MDL §301(4).
The lack of a certificate of occupancy is not necessarily fatal to a landlord's rent claim. Crystal Realty Co. v. Ribot, 27 HCR 33913, N.Y.L.J., June 11, 1999 at 30, col. 2 (A.T. 1st Dep't). The rent forfeiture provisions of the Multiple Dwelling Law apply if renovations affect the integrity of a building's structure or threaten a tenant's health or safety. See Gottlieb v. Marco, 23 HCR 235A, N.Y.L.J., April 28, 1995 at 28, col. 3 (A.T. 1st Dep't). An apartment which lacks a certificate of occupancy is not presumptively unsafe. See Sima Realty LLC v. Philips, 282 A.D.2d 384, 385 (1st Dep't 2001). MDL § 302 was drafted to provide tenants with the means to protect against unsafe living conditions, not to serve as an "opportunity for unjust enrichment." B.S.L. One Owners Corn. v. Rubenstein, 159 Misc.2d 903 (1994); Chatsworth 72nd St. Corp. v. Rigai, 71 Misc.2d 647, affd. 74 Misc.2d 298, affd. 43 A.D.2d 685. In addition, Section 302 of the Multiple Dwelling Law "does not provide for recovery of rent previously paid for use and occupancy." Goho Equities v. Weiss, 149 Misc.2d 628 (A.T. 1st Dep't 1991).
One of the reasons there was a delay in the SFLP obtaining the certificate of occupancy was that the Kennedys' request that the SFLP remove the top of the wall of Mrs. Kennedy's bathroom for aesthetic purposes. In a letter to Mr. Kennedy, dated November 8, 1996, Mr. Iverson explained that according to the buildings department, the lack of walls and doors in effect made the entire seventh floor a bathroom. (Exh. 52). In addition, there was testimony that the Department of Buildings either lost or misplaced all or part of the Building's file, which resulted in additional delays. Nevertheless, as of August 7, 1998, the SFLP had produced a temporary certificate of occupancy (dated June 24, 1998) for the entire Building, as set forth in a prior decision of Judge Klein. In Judge Klein's decision, the only issues with which he expresses concern are the heat and the certificate of occupancy. The temporary certificate was provided to the court's satisfaction. An interim order to provide heat was granted by Judge Klein, but only on the condition that decorative radiator enclosures covering the heat source be removed.
Furthermore, the court heard no testimony in this case that the construction affected the structural integrity of the Building. The types of problems the Kennedys encountered were for the most part with finishing details, not structural problems that would affect their lives or safety. There was no testimony that the Buildings Department required the SFLP to do any additional work between the time the Kennedys moved in and the time it ultimately issued the certificate of occupancy. All evidence points to the conclusion that the SFLP constructed the Apartment according to plans previously approved. The delay appears to be a bureaucratic bungle. Although there were some violations placed on the Building during previous cases in this court, these violations are not the kind which would require the court to enforce the forfeiture provisions of the Multiple Dwelling Law. Rather, the violations and conditions claimed are the kind that implicate the warranty of habitability. Accordingly, in this case, the court finds that there were no dangerous structural conditions existing while the Kennedys occupied the Apartment, that the SFLP was diligently procuring the final certificate of occupancy, and that the delay was caused in part by the Kennedys' request for changes and that they were informed of the problem of obtaining the certificate of occupancy prior to their occupancy. As a result, the Kennedys are responsible for paying all rents that accrued from March 1, 1997 until April 30, 2002 subject to any credit or abatement.
The Kennedys did not prove that the SFLP could not collect rent for certain months pursuant to MDL §302(a) because the SFLP failed to correct rent-impairing violations. The two violations which the Kennedys point to are the SFLP's failure to file an annual sprinkler test report and the SFLP's failure to provide an adequate supply of heat. To successfully invoke the defense, a tenant must plead and prove that (i) the violations have existed for six months and (ii) the tenant has deposited rent with the clerk of the court. West New York Realty Inc. v. Berguson, N.Y.L.J., April 27, 1992 at 27, col. 5 (A.T. 1st Dep't). Additionally, if the condition did not exist or was corrected, the sanctions provision of subparagraph (a) do not apply. MDL § 302(a)(3)(b). Looking at the sprinkler violation from April 1, 1996, a test result was received back from the SFLP on May 28, 1996 and the violation was removed on May 28, 1996. The SFLP introduced a certified copy of a record from the New York City Department of Housing Preservation and Development listing that violation as removed as of May 28, 1996. (Exh. 78). In addition, the plumber who tested the sprinkler system in April of 1996, Marvin Wassoff, testified credibly that there was no problem and filled out the requisite form with the test results. There was no rebuttal to that testimony. As far as the inadequate heat complaint, the court finds below that the Kennedys failed to prove this claim. Accordingly, because the violations were, in the case of the sprinkler test, cured, or not proven to exist, the Kennedys are not entitled to a rent abatement under MDL §302(a).
The Kennedys also seek abatements under Real Property Law § 235-b, which requires a landlord to provide residential premises free of "conditions which would be dangerous, hazardous or detrimental to . . . life, health or safety" to occupants. This RPL 235-b warranty of habitability creates a duty on the landlord to keep the premises habitable which is "coextensive and interdependent with the duty to pay rent." Fourth Federal Savings Bank v. 32-33 Owners Corp., 236 A.D.2d 300, 301 (A.D. 1st Dep't, 1997). To prove there has been a violation of the warranty of habitability, a party must come forward with evidence about the nature of the violation: the extensiveness of the condition, the way it affected the tenant's health, safety or welfare, and any measures taken by the landlord to correct it. See Park West Management Corp. v. Mitchell, 4.7 N.Y.2d 316, 328 (1979).
The warranty of habitability will not be applied differently to a lease of a luxury apartment. Solow v. Wellner, 86 N.Y.2d 582 (1995). The warranty of habitability does not refer to "a broad spectrum of expectations arising out of the parties' specific contractual arrangement." Id. At 588. Rather, it protects tenants against deficiencies "that prevent the premises from serving their intended function of residential occupation." Id. At 589.
The calculation of an abatement is not exact, but depends on the severity and duration of a violation, as well as an examination of what the landlord did to correct that violation. 1420 Concourse Corp. v. Cruz, 135 A.D.2d 371, 372-3 (A.D. 1st Dep't 1987). Technically, the exact measure of damages that can be awarded as an abatement is the difference between the lease amount and the fair market value of the premises during the period of the breach. See Park West Management Corp. v. Mitchell, 47 N.Y.2d 316, 329 (1979); Nostrand Gardens Co-op v. Howard, 221 A.D.2d 637, 638 (A.D. 2d Dep't 1995). Expert testimony is not required to figure out the fair market value of the premises. Park West Management Corp. at 330. Generally speaking, there is a minimum level of dependability and reliability that a landlord should be able to exercise in providing basic services, such as heat, light, water, sanitation, and maintenance. See Tower West Assoc. v. Derevnuk, 114 Misc.2d 158, 164 (Civ. Ct. N.Y. Co. 1982).
If, after reasonable notice, the landlord refuses to make repairs affecting the habitability of the premises, the tenant may make the repairs and then deduct the actual costs of the repairs from the rent due. See e.g. Jangla Realty Co. v. Gravanaga, 112 . Misc.2d 642 (Civil Ct. Queens Co. 1981). This right to "repair and deduct" materializes only after the landlord has been given notice of the condition and failed to correct it. See id.; see also Katurah Corp. v. Wells. 115 Misc.2d 16 (A.T. 1st Dept. 1982).
In 1997, the Kennedys brought an HP proceeding. In an August 7, 1998 decision, Judge Klein found that there were seven violations, three of which had been corrected on or before the date of the decision, leaving three. Judge Klein next issued an order under index number 5578/97, dated September 9, 1998, which provided for the following violations to be repaired: wooden floor splintered East room lower level 6th story [sic] Apartment 6, abate the nuisance wooden roof decking installed at roof throughout, and repair makeshift ladder 7th floor to roof center staircase 6th story [sic] Apartment 6 upper level.
The Kennedys' biggest complaint was the lack of heat. A landlord is required during the months between October first and May thirty-first to provide heat. N.Y. Mult. Dwell. § 79(1). The minimum indoor temperature must be 68 degrees Fahrenheit from six o'clock in the morning to ten o'clock in the evening whenever the outside temperature falls below 55 degrees Fahrenheit. Id. From ten o'clock in the evening to six o'clock in the morning, the minimum indoor temperature must be at least 55 degrees Fahrenheit when the outside temperature falls below 40 degrees Fahrenheit. Id. In one letter, Mr. Kennedy said that his daughter's bedroom was so cold it could be used as a meat locker. However, although the Kennedys provided a national report of climatological data from the Central Park Observatory certified by the United States Department of Commerce (Ex. FF ) they failed to sufficiently tie specific dates to specific heat problems. While the court credits the testimony that it was cold in the Apartment, it is impossible for the court to make a finding that the coldness was below the temperature requirements as set forth in N.Y. Mult. Dwell. § 79(1) without more specific testimony. Accordingly, the court declines to grant an abatement for heat problems the Kennedys suffered in the Apartment.
Another very big issue for the Kennedys was the lack of a sufficient privacy screen on the seventh floor atrium. Mr. Kennedy testified credibly that SFLP failed to provide an adequate screen. By his letter of March 16, 1998, he put SFLP on notice that he intended to utilize "self-help" in installing a shade. (Exh. T). In addition, he testified he got three estimates and picked the middle priced option, which cost $25,000.00. The SFLP argued that the tulle screen first installed by Mr. Iverson met their obligation under the Lease. However, the court finds that the tulle and pulley screen first installed by Mr. Iverson as depicted in the photos and testified to by the witnesses was totally inadequate as a sunscreen or privacy screen. Instead, the device Mr. Kennedy installed is precisely the kind of screen which is called for under the Lease. As much as the court believes the Kennedys are entitled to a credit for the amount they paid to purchase and install the privacy screen, this is not a situation where "repair and deduct" can be utilized because the lack of the screen did not impact on the warranty of habitability. Because the court cannot hear damage claims on a contract and because there was no evidence that the SFLP at any time agreed to credit the Kennedys, the damage claim is dismissed without prejudice.
The elevator problems impacted on the warranty of habitability. Operable elevator service is essential in a high rise residential building because the lack of it can prevent the premises from being used as a residential dwelling. Solow v. Wellner, 86 N.Y.2d 582, 589 (1995). The Apartment, which is located on the sixth floor, must have regular elevator service to be used as a residential dwelling. There were many complaints made by Mr. Kennedy. In a letter dated June 6, 1997 (Ex. R), he writes that the elevator is not operating properly and is unsafe. He was trapped twice in the elevator that morning and requested that SFLP provide a person competent to operate the elevator over the weekend in case the nanny got trapped. On June 6, 7, 8, and 9, 1997, Mr. Kennedy testified the elevator broke down. He also testified that the elevator regularly broke down on cold days. These incidents were memorialized in writings (Ex. C, 2E, 2P, JJ, Pet. Ex. 11). Mr. Kennedy wrote to complain on January 12, 1999 that the elevator was stalling, restarting, and stopping between floors. (Ex. LL). On January 23, 2000, the Kennedys' daughter was stuck in the elevator for an hour and a half. (Ex. LL). On April 6, 2000, the elevator got stuck. (Ex. TT). Christmas Day, 2001, Mr. Kennedy got stuck in the elevator for an hour with his son. After his son was able to get out with help from the elevator repair person, Mr. Kennedy then spent another hour in the elevator. He testified that the elevator broke down dozens of times over a three year period. Accordingly, the Kennedys are awarded a five percent (5%) abatement over the course of their tenancy for the elevator problems. See Solow v. Wellner, 86 N.Y.2d 582, 589 (1995)
The Kennedys sufficiently proved that there was a vermin problem in the Apartment which impacted on the warranty of habitability. On March 16, 1999, Mr. Kennedy wrote to complain that there were rat droppings in the kitchen. (Exh. NN). There is a picture of a dead rat trapped in a vent and an accompanying letter of October 14, 1999 from Mr. Kennedy detailing how the rat was found. (Exh. PP, C, 2Y). On September 20, 2000, Mr. Kennedy testified he saw a mouse run across the kitchen floor and that there were holes which needed to be sealed. (See also Exh. VV). Although the testimony the court heard regarding the vermin was credible, it was not clear exactly which months were problematic, aside from the dates listed above. As a result, the court awards a five percent (5%) abatement for the months of March 1999 through September 2000, for a total of seven months.
Lastly, the court finds that the leaks constituted a violation of the warranty of habitability. In the fall of 1997, there was a leak on the seventh floor which damaged the carpet. The photographs show that the leaks caused ceiling stains and the walls were beginning to buckle. (Ex. AAA, ZZ). Letters sent by Mr. Kennedy document the leaks from the ceiling and in the seventh floor closet. (Ex. HH, C, NN, SS). The leaks were not completely abated for seven months. The court awards a 5% abatement for seven months.
The other issues raised by the Kennedys were not sufficient to raise warranty of habitability violations and are not abatable. Lack of air conditioning does not violate the warranty of habitability. See Hausman v. Residential Funding Corms., 76 Misc.2d 522 (Civ. Ct. NY Co. 1973). The Kennedys cite several cases to support their contention that lack of air conditioning does violate the warranty of habitability but those cases are either not on point or have been superceded. In H&R Bernstein v. Barrett, 101 Misc.2d 611 (Civ. Ct. Bronx Co. 1979), the breach of the warranty of habitability was a failure to provide water, which in turn affected the tenant in a number of ways including a failure of the air conditioning. Although in Whitehouse Estates v. Thomson, 87 Misc.2d 813 (Civ. Ct. NY Co. 1976), the court awarded a warranty of habitability claim specifically for a non-working air conditioner, this case has been superceded by Solow v. Wellner, 86 N.Y.2d 582, 589 (1995), which holds that the warranty of habitability is the same for luxury or ordinary dwellings. Because air conditioning is not part of the warranty of habitability for ordinary apartment buildings in the city of New York, it cannot be part of the warranty of habitability in this case. The fact that the floor lacked several pieces of aluminum strips does not impact on the warranty of habitability.
Accordingly, the court will award a money judgment to SFLP based on this decision and order. Because the Kennedys have returned possession of the Apartment to SFLP, there is no possessory judgment.
This is the decision and order of the court. Settle order with worksheet.
FOOTNOTES
1See appendix A.
2The Kennedys have not claimed the lack of this cabinet as a reason they delayed taking possession.
3On the court's inspection of the 7' Floor, it noted that the ceiling was extraordinarily low and with the huge area the skylight covered, direct sun through that skylight would be problematic. Furthermore, the court observed, a large apartment building across the street has many windows from which residents could look into the seventh floor through the skylight.
Appendix A
42. Landlord's Work. Landlord agrees that it shall perform the following work ("Tenant Improvements") in a good and workmanlike manner at its expense prior to the Completion Date (hereinafter defined) herein of the specified:
1. Private 6' floor foyer: Complete north window with coat closet near climate unit.
2. Den-Dining: Cypress floor with etched aluminum divisions between parquets.
3. Kitchen: White "country look" kitchen glazed cabinetry with washer/dryer either side by side or stacked, as possible. Far kitchen wall to be washed in light from skylight above and floor finished with under lighted glass blocks. Step to kitchen fabricated from old cellar sidewalk access panel. A kitchen door or "saloon shutters" as mutually agreed by Landlord and Tenant.
4. Nanny's bedroom: Hanging closet to be built at left of existing unit.
5. Nanny's bedroom: Subdivide with doored wall at west window to accommodate circular stair and exercise equipment to be accessed by additional door from child's bedroom hallway. Place another door at west of child's hall for child's privacy as mutually agreed by Landlord and Owner.
6. Child's bathroom: Extend tile to enclose shower area.
7. Seventh floor: At top of stairs build man's closet, walk in or faux walk in.
8. Seventh floor center: Cabinets for refrigerator/stereo equipment built to "square up" the slanted concrete ceiling over the fire stair. The fire stair door will be relocated as far to the west as possible. Low wall, planter to be built at exposed I beam with switch for light plug. A mechanical privacy blind/sun screen will be installed at skylight (decorative aspects to same, if any, are the responsibility of Tenant).
9. Seventh floor west: Remove doorway and top of wall at bathroom. Surround bath with marble, trim bath area with painted wainscot. Remove/store urinal. Shower walls/door by mutual agreement. Two fixed skylights, one at existing roof access, the other opposite it to the west. Walk in woman's closet at area of room west of bathroom.
10. All bedroom floors installed with strip oak.
11. All paint to be off white, all trim red mahogany.
12. All terrace areas built of wood plank or recycled plastic faux wood plank.
13. Exterior painting, caulking, etc. as per landmarks at balustrade and sixth floor windows.
14. Child's Bedroom: bookshelves by mutual agreement.
Landlord shall deliver the demised premises of the Completion Date in the manner as is customary in New York City with clean white painted walls, finished ceilings, bathrooms and kitchen.
All of the foregoing work shall be subject to approval of Landlord and shall be completed in accordance with building standard [sic].