April 4, 2017

April 3, 2017:  This Q&A post originally appeared on the LandlordsNY blog, where Michelle Maratto Itkowitz is the “Legal Expert”.

Hi, Michelle here. I am the LandlordsNY “Legal Expert”. My goal is to post in the blog all of the questions I get from LandlordsNY members (keeping the member anonymous) and my answers thereto, when I think that such questions and answers would be of interest to other people. Let me know if this is helpful. These questions are excellent, keep them coming.

Question:

“The sink in the second floor apartment backed up due to a clogged pipe elsewhere in the building and flowed into the first floor apartment. The first floor tenant was not home when the flood happened. When the first floor tenant came home, she discovered two inches of water in her apartment. The first floor tenant is asking for $4,000 damages and about $1,000 for hotels while the apartment is drying out with the ServPro aerators. The first floor tenant has no renter’s insurance and my insurance company does not cover any content damage, only damages to the building. What is my legal obligation? The first floor tenant is also concerned about bacteria from the back up and I am considering hiring an environmental firm to confirm there are no health issues.”

Answer:

It does not seem like you are suggesting that the tenant caused the clog? Sometimes when the plumbers come and clear a line they can find out what blocked the pipes and it leads to a certain tenant – for example the line was blocked by a child’s toy. Based on the fact that you did not say that the tenant caused this clog, I am going to assume that this was not a crisis of the tenant’s own making.  

If the tenant has been constructively evicted by the flood, then you must pay for the hotel. A constructive eviction may occur when a tenant has not been physically expelled or excluded from possession, but the landlord’s wrongful acts and/or omissions work to substantially and materially deprive the tenant of the beneficial use and enjoyment of the premises demised. Barash v. Pennsylvania Terminal Real Estate Corp., 26 N.Y.2d 77 (1970).

In 542 East 14th Street, LLC v. Moses, 38 Misc.3d 127(A), (App. Term 1st Dept. 2013) a landlord sued to evict a tenant for nonpayment of rent. Tenant claimed that the apartment was uninhabitable. The court ruled for tenant, finding that tenant was constructively evicted from April 1, 2008, through July 31, 2009. Landlord appealed and lost. The trial court fairly determined that, even after landlord’s completion of extensive structural repairs that required tenant’s temporary relocation, tenant was unable to move back in because the apartment was left in an appalling condition, with mice infestation, “black slime” on the furniture, a foul odor, and dust and construction debris throughout. Tenant couldn’t move back in until major clean-up efforts were completed nearly a year and half later.

Hiring the environmental company is never a bad idea, in my opinion.  

The lease will govern your obligations to the Tenant regarding the personal property. What does the lease say about your liability to the tenant for property damage? The LandlordsNY Lease form says:

PROPERTY LOSS, DAMAGES, OR INCONVENIENCE

(A) Unless caused by the negligence or misconduct of Landlord or Landlord’s agents or employees, Landlord or Landlord’s agents and employees are not responsible to Tenants for any of the following (1) any loss of or damage to Tenants or their property in the Apartment or the Building due to any accidental or intentional cause, even a theft or another crime committed in the Apartment or elsewhere in the Building; (2) any loss of or damage to Tenants’ property delivered to any employee of the Building (i.e., doorman, superintendent, etc.,); or (3) any damage or inconvenience caused to Tenants by actions, negligence or violations of a lease or Lease by any other tenant or person in the Building except to the extent required by law.

(B) All property stored within the Apartment or the Building by Tenants shall be at Tenant’s sole risk.  It is Tenants’ duty to provide insurance coverage on stored property for loss caused by fire or other casualty, including, without limitation, vandalism and malicious mischief, perils covered by extended coverage, theft, water damage (however caused), explosion, sprinkler leakage and other similar risks.  

(C) It is Tenants’ duty to provide insurance coverage on Tenants’ property for loss caused by fire or other casualty, including, without limitation, vandalism and malicious mischief, perils covered by extended coverage, theft, water damage (however caused), explosion, sprinkler leakage and other similar risks.  

Courts have upheld such lease provisions. The Appellate Division, First Department, has held that personal property damages are not recoverable within the context of a breach of the warranty-of-habitability claim. Halkedis v. Two East End Ave. Apartment Corp., 161 A.D.2d 281 (1st Dep’t 1990) (RPL § 235-b “does not permit a tenant to recover property damage. …”); 40 Eastco v. Fischman, 155 A.D.2d 231 (1st Dep’t 1989).  The Second Department has followed this same rule.  Couri v. Westchester Country Club, Inc., 186 A.D.2d 712 (2d Dep’t 1992), leave to appeal dismissed in part, denied in part, 81 N.Y.2d 912 (1993) (Tenant was not permitted to recover personal property damage resulting from a breach of the warranty of habitability under RPL § 235-b.); 303 Beverly Group, L.L.C. v. Alster, 190 Misc. 2d 69 (App. Term 2001) (“consequential damages are not recoverable for the breach of the warranty of habitability”).

Thank you for this question.  Finally, I am obligated to say that this answer is for general informational purposes only, does not constitute legal advice, and does not create an attorney and client relationship between us or between you and LandlordsNY.  

Let me know if you need anything else.

Michelle Maratto Itkowitz
Itkowitz PLLC
26 Broadway, 21st Floor
New York, New York 10004
(646) 822-1805
mmaratto@itkowitz.com
http://www.itkowitz.com