January 11, 2026

This post is a companion article to my podcast, which, at the time of publication of the episode was called Tenant Law Podcast, but which is now called Learn to Live Better, a Housing Law Podcast. Listen on Apple, Spotify, Youtube, or wherever you get your podcasts.

Today’s case is Diego Beekman Mutual Housing Association v. Hammond, 81 Misc 3d 1244(A) [Civ Ct, Bronx Cty 2024] and is covered in Episode 23, listen on Spotify, Apple, YouTube or wherever you get your podcasts.

The Warranty of Habitability Law

Every residential lease implicitly carries with it a “warranty of habitability” as articulated in New York Real Property Law §235-b which states:

(1) In every written or oral lease or rental agreement for residential premises the landlord or lessor shall be deemed to covenant and warrant that the premises so leased or rented and all areas used in connection therewith in common with other tenants or residents are fit for human habitation and for the uses reasonably intended by the parties and that the occupants of such premises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety. When any such condition has been caused by the misconduct of the tenant or lessee or persons under his direction or control, it shall not constitute a breach of such covenants and warranties.

 

(2) Any agreement by a lessee or tenant of a dwelling waiving or modifying his rights as set forth in this section shall be void as contrary to public policy.

 

(3) In determining the amount of damages sustained by a tenant as a result of a breach of the warranty set forth in the section, the court; (a) need not require any expert testimony;”

The obligation of the tenant to pay rent is dependent upon the landlord’s satisfactory maintenance of the premises in habitable condition. Park West Management Corp. v. Mitchell, 47 NY2d 316 [1979].

Violation of a housing, building, or sanitation code constitutes prima facie evidence that the premises are not in habitable condition, but does not necessarily constitute automatic breach of the warranty. In some instances, it may be that the code violation is de minimis or has no impact upon habitability. Thus, once a code violation has been shown, the parties must come forward with evidence concerning the extensiveness of the breach, the manner in which it impacted upon the health, safety or welfare of the tenants and the measures taken by the landlord to alleviate the violation. Park West Management Corp. v. Mitchell, 47 NY2d 316 [1979].

An award for a breach of the warranty of habitability may take the form of a sum of money awarded the tenant in a plenary action or a percentage reduction of the contracted-for rent as a setoff in summary nonpayment proceeding in which the tenant counterclaims or pleads as a defense breach by the landlord of his duty to maintain the premises in habitable condition. Park West Management Corp. v. Mitchell, 47 NY2d 316 [1979].

A common problem in New York City is roaches. I saw a couple of great cases on roaches recently, so we are doing an episode on roach infestations. In today’s case, the tenant got a 100% rent abatement because the roach condition was so bad.

Today’s Case – A Persistent and Terrible Roach Problem

In today’s case the landlord sued the tenant for rent. The tenant came into court and one of her defenses was that she should not have to pay the rent because she had a persistent and terrible roach problem. In fact, the tenant’s attorneys began their defense by making a motion, asking the court immediately issue a class “C” violation for roach infestation and an order directing landlord to correct the violation by a date certain.

The motion was supported by photographs depicting a serious roach infestation inside the apartment, including inside of the fridge.

The landlord opposed the motion, saying that an exterminator went in, and blames the tenant for the roach problem.

The court held a hearing to determine whether the alleged infestation existed at the time of the hearing (a potential defense). This is what the Court found at the hearing:

[Tenant’]s credible and unrefuted testimony was as follows: she has lived with a terrible roach problem for some time; that extermination, including vacuuming and spray poison was done…; that the infestation remained. [Tenant] submitted several photographs and one video into evidence. Each was taken after the extermination services [were] provided. [Four] photographs clearly show evidence of roaches…The video shows crawling roaches in a bedroom closet. In sum, [tenant] stated she sees roaches all the time and all throughout the apartment…

 

[Landlord]…has never investigated for roach nests or roach waste, has not sealed holes and cracks, and has not identified and stopped the source of moisture seeping into the apartment…no proof was offered that integrated pest management, as required by the NYC Administrative Code and Local Law 55 of 2018, was ever even partially attempted prior to [the one time the landlord went in with an exterminator after the case began.”

The court found that tenant proved a roach infestation in the subject apartment by a preponderance of evidence. The judge went on to state:

Indeed, the condition can fairly be described as atrocious. The court finds respondent’s statement that she lives in squalor truthful…As such, the court finds that the condition constitutes a class “C” violation-for roach infestation throughout the apartment…class “C” violations are “immediately hazardous”)…”

The Court ordered the landlord to correct the violation within 21 days, because according to the NYC Admin Code § 27-2017.4(C) (“The date for correction of an immediately hazardous violation for cockroaches, mice, or rats shall be twenty-one days after service of the notice of violation as provided on such notice.”). The court ordered the tenant to provide access on 24 hours’ notice from landlord.

This case is a good example of changing the hunter (the landlord, seeking rent) into the hunted (the landlord being ordered by the court to correct the problem, even before the court considers whether the tenant owes anything).

I did some quick research and the most recent roach case I found (at the time of the Episode 23 in March 2024) was just a month earlier in queens. NYCHA v. Barrett, 81 Misc.3d 1229(A) [Civ Ct, Queens Cty 2024], and there the landlord sued tenant for rent, tenant interposed the roaches defense and proved the defense at a hearing. After the hearing, the court found that tenant was living with egregious conditions, including roach, spider, and mice infestations throughout the apartment, including the bathroom and kitchen. This rendered the unit uninhabitable. The court granted tenant a full rent abatement and ordered a temporary relocation while the apartment was being repaired by landlord.

Takeaways

• Residential tenants have a right to a habitable and safe apartment.

• If there is a violation to the implied warranty of habitability, the landlord can be ordered to fix the problems, and it could result in tenant not having to pay some or all the rent.

• If a tenant needs repairs, the tenant should go to 311Online and make a complaint and be sure to provide access to the HPD inspector, who will likely issue violations. Violations are some of the best evidence of conditions that violate the warranty of habitability.

• I never recommend, however, that tenants withhold rent and get sued, because lawsuits can be stressful, time consuming, and risky. Tenants should not withhold rent unless they are working with Legal Aid or other experienced attorneys who know how to protect such tenants in those situations. Both of the tenants in today’s cases had legal aid attorneys.

• A terrible roach infestation is serious and something a residential tenant has a right not to have to live with and something the landlord can be ordered by the City or by a Housing Court judge or the DHCR (for Rent Stabilized tenants) to correct. A tenant does not have to get sued in order to exercise those rights.

Respectfully submitted,

Michelle Itkowitz