Opinion
No. L & T 85298/2011.
2012-11-29
170 WEST END AVENUE OWNERS CORP, Petitioner v. R. Leah TURCHIN, Respondent.
Seyfarth Shaw LLP, by Jerry A. Montag, Esq., New York, for Petitioner. R. Leah Turchin, Esq., Respondent Pro Se.
Seyfarth Shaw LLP, by Jerry A. Montag, Esq., New York, for Petitioner. R. Leah Turchin, Esq., Respondent Pro Se.
Rosicki, Rosicki & Associates, by Kenneth Sheehan, Esq., Plainview, for JP Morgan Chase Bank.
SABRINA B. KRAUS, J.
This summary nonpayment proceeding was commenced by 170 WEST END AVENUE OWNERS CORP (Petitioner) against R. LEAH TURCHIN (Respondent), seeking to recover possession of 170 WEST END AVENUE, APT 20A, NEW YORK, N.Y. 10023 (Subject Premises) based on the allegation that Respondent had failed to pay maintenance due for the Subject Premises.
PROCEDURAL HISTORY
On or about August 31, 2011 Petitioner issued a ten day demand for $15,467.67 in arrears. The Notice of Petition and Petition are dated October 5, 2011. On November 8, 2011, Respondent appeared through counsel and filed an answer asserting affirmative defenses and counterclaims. Respondent asserted defenses based on improper service, a defective rent demand, breach of warranty of habitability and constructive eviction.
The proceeding was originally returnable on November 21, 2011, and was dismissed on the initial return date based on the parties' failure to appear. The parties stipulated to vacate the default and restore the proceeding to the calendar on January 13, 2012.
In January, Respondent moved for dismissal of the proceeding, and severance of the counterclaims. Petitioner cross-moved for dismissal of Respondent's affirmative defenses and amendment of the petition to include attorneys fees from a prior non-payment proceeding. The motions were marked submitted on February 17, 2012, and the court reserved decision.
On February 8, 2012, JP Morgan Chase filed a notice of appearance through counsel, which only appears to have been served on Petitioner's counsel.
On March 6, 2012, the court (Stanley, J) issued a decision denying Respondent's motion, holdings that the rent demand was not defective and that Petitioner had not waived its right to proceed in a summary proceeding. The court granted the cross-motion to the extent of striking Respondent's first four affirmative defenses, and denied the request to amend the petition. The decision restored the proceeding to the calendar on November 4, 2012 at 9:30 am.
On May 15, 2012, the proceeding was assigned to Part R for trial. The attorneys indicated settlement was likely in connection with related Supreme Court litigation, and the proceeding was marked off calendar on consent, for the parties to file a stipulation of settlement. On June 21, 2012, the parties advised the court that they had been unable to reach a settlement, and the proceeding was restored to the calendar for trial on August 1, 2012. This trial date was adjourned by the parties on a number of occasions, through September 5, 2012.
On September 5, 2012, the trial commenced, the court ruled upon a pending motion to quash and the proceeding was adjourned to September 7, 2012, for continued trial. On September 7, 2012, Respondent's counsel made an application for a continuance, which was denied by the court. After the denial of said application, Respondent fired her attorney and made an application for an adjournment to obtain new counsel, which was also denied by the court.
Respondent is an attorney admitted to practice law in New York.
The trial continued and concluded on September 7, 2012, with Respondent proceeding pro se. The proceeding was adjourned to October 15, 2012, for the submission of post trial memoranda.
RELATED LITIGATION
The 2010 Nonpayment Proceeding
The Court takes judicial notice of a related proceeding and action and the contents of said files. The first is a prior non-payment proceeding, under Index No. 91957/2010 (2010 Proceeding). Petitioner issued a rent demand on October 15, 2010, seeking $16,350 in arrears and additional rent charges. The petition issued on November 12, 2010. Respondent filed an answer asserting a general denial. The proceeding was originally returnable in December 2010. It was adjourned to January 26, 2011. On January 26, 2011, the parties entered into a stipulation which provided that Respondent would move to consolidate the 2010 Proceeding with a pending action she had commenced in Supreme Court. The motion to consolidate was denied as discussed below.
The 2010 Proceeding was adjourned through May 4, 2011, when a default judgment was entered against Respondent based on her failure to appear. The default judgment was vacated on May 18, 2011, and the proceeding was adjourned to June 20, 2011, and then July 27, 2011 for trial. Many of the stipulations for adjournment provided that Respondent would pay use and occupancy, without prejudice, while the proceeding was pending.
On July 14, 2011, Roy Wallace Esq appeared as Counsel for Respondent and on July 27, 2011, Respondent moved for dismissal of the 2010 Proceeding based on procedural defects, the prior action pending in Supreme Court or alternatively for leave to file an amended answer. The motion was denied by the court (Schreiber, J) and the proceeding was adjourned to August 24, 2011 for trial. On August 24, 2011, Petitioner made an oral application to discontinue the proceeding without prejudice, which was granted by the court.
The Supreme Court Litigation
Respondent commenced Supreme Court litigation under Index Numbers 650402/2010 and 651987/2010 against Petitioner and Ronald and Maria Smith (Smiths) the shareholders for Unit 23A in the subject building. The complaint asserts that in April 2009, the Subject Premises suffered severe water damage as a result of a leak from a pipe that burst in Unit 23A, resulting in Respondent's constructive eviction from the Subject Premises. The complaint against Petitioner asserted damages against Petitioner based on its negligence in addressing the leak and resulting water damage.
In June 2011, Respondent moved to consolidate the 2010 Proceeding with the Supreme Court action against Petitioner. The court (Feinman, J) denied the motion for the reasons stated on the record. The Court's reasons included in pertinent part:
And bearing in mind that Housing Court is the court with the special expertise in a
nonpayment proceeding, and the purpose of a summary proceeding is to allow a quick disposition in situations where such as there's a coop needs or believes it needs access to funds in terms of maintenance and to have its operating costs covered; those are one of the many policy reasons for summary proceeding.
And the critical issue in my mind looking at this, because I understand that there are some common issues in terms of what is the source of the leak and what did the coop do in response to the leak, and did they somehow not properly react when informed of the leak.
Nevertheless, the proprietary lease has a no-setoff provision. So the two cases can properly proceed separately, because you don't get a setoff in the nonpayment for any damages that you might be entitled to in the Supreme Court action. At least, that's how I understand the no-setoff provision to operate.
......
There are certain factors that would favor joinder, but in light of the fact that there is that explicit bargained for agreement .... which is to allow the coop to have deposit it needs to operate on a daily basis. Whether it's to pay heat, electric, whatever, doormen ... whatever the operating expenses are; and if you're entitled to a judgement, you will get that in the context of this action; but the two aren't allowed to be used as a offset, one against the other.
(Emphasis added)
The court relying in large part on the no setoff provision denied the motion.
The two Supreme Court actions were consolidated pursuant to a stipulation on January 25, 2012, under Index Number 650402/2010. On February 22, 2012, the parties entered a stipulation setting forth discovery deadlines, including scheduling depositions and an inspection of the Subject Premises. Respondent provided defendants counsel with authorizations to obtain Respondent's tax records for 2008–2010. The Supreme Court action is still pending.
FINDINGS OF FACT
Respondent is the proprietary lessee of the Subject Premises pursuant to a written agreement dated March 5, 2002 (Ex 1), and Petitioner is the lessor pursuant to said agreement. There is a valid multiple dwelling registration on file with HPD (Ex 2). Through the date of the trial, Respondent had failed to pay $9945.48 in maintenance, which had accrued at a monthly rate of $1185.22. In addition, Petitioner assessed Respondent for late charges totaling $740.60, cable fees of $41.27, a roof assessment of $990.99, $1211.86 based on a real estate tax abatement divided among shareholders, and $774.00 for a storage bin. The total charges asserted by Petitioner, not including legal fees, through September 2011 are $13,704.20(Ex 3).
In April 2009, there was a leak in the building which started from apartment 23A. The leak resulted in water coming into the Subject Premises. Respondent was not at the Subject Premises, at the time of the leak, and Boris, the Resident Manager for the building, entered the Subject Premises, observed some water on the floor and dried the water on the floor. Respondent learned of the leak the next day, when she returned to the Subject Premises and went with Tony, a maintenance worker for the building. Respondent saw no water and no visible damage, other then a few floor tiles that appeared to be stained.
Nothing further happened until July 2009, when Respondent noticed that a picture hanging on her wall, appeared to be stained black from mold growth (Ex I–1). Respondent called Boris to look at the picture, and stated he agreed that the picture appeared damaged from mold. By the end of July, Respondent determined that there was damage to her living room and bedroom which she believes was due to the April 2009 leak.
RTK Environmental Group (RTK) was retained by an insurance carrier regarding damage to the Subject Premises. RTK took air samples from the Subject Premises on July 29, 2009, September 4, 2009 and October 2, 2009. RTK issued written findings regarding the results and recommendations which were admitted into evidence (Exs K1–3). Pursuant to the July 29, 2009 samples, RTK found that the samples taken from the bedroom, and living room showed acceptable levels of mold, but recommended mold remediation in the living room of the Subject Premises. After the testing done in September 2009, RTK found unacceptable levels of mold in the bedroom and living room and once again recommended mold remediation. By the October 2, 2009 date, the wood floor throughout the Subject Premises had been removed, and RTK found no unacceptable levels of mold, all remediation was complete and no further recommendations were made. RTK made no recommendation at any time which would indicate Respondent could not or should not remain in occupancy of the Subject Premises.
After the remediation had been completed, Pro Line Finishing was retained to do construction work, which included filling holes in the walls, installation of new sheetrock and preparation of the walls for painting. Respondent testified this work was completed by late November 2009. After this date, Respondent hired someone to paint the walls. After the painting was completed, new wood floors were installed. Petitioner paid Respondent $17,000.00 for the installation of the new floors. Respondent testified that the work was completed by mid December. Respondent threw out much of the furniture that had been in the Subject Premises, items not discarded were stored during remediation.
Respondent testified that she did not know the source of the April 2009 leak.
Respondent married May 30, 2009, and her husband lives in Long Island. Respondent testified that she listed the Long Island address as her residence on her 2009 and 2010 tax returns. Respondent produced what she represented were her tax returns for 2009 and 2010 and these were admitted into evidence (Exs 13A & 13B). Respondent testified she uses the Subject Premises for her law practice, as well as for living purposes. Respondent produced no City and State tax returns for the period.
No other tenant affected by the April 2009 leak moved out as a result of the damage. Respondent testified that she moved out of the Subject Premises towards the end of July 2009 and that she remained out through January 2010. Respondent testified that she moved her law practice to Long Island during this period, but that she lived in Manhattan, apart from her husband, staying in hotels and at the homes of her friends. Respondent submitted no hotel bills to show where she stayed during this period. Respondent called no witnesses to confirm her testimony that she lived with friends during this period. Respondent's husband did not testify. Respondent testified she remained in New York City to monitor the work being done to the Subject Premises during this period. The Court found Respondent's testimony regarding her constructive eviction to lack credibility and that testimony was unsubstantiated by any other evidence. The Court finds that Respondent was residing with her husband in Long Island during this period as indicated on Respondent's tax returns.
Respondent acknowledged in 2009 and 2010 she was not focused on the Subject Premises, as she had gotten married and her mother was terminally ill and died in May 2010.
Boris, the Resident Manager for Petitioner testified next. Boris supervises a staff of 13 who service 486 apartments in the building. Boris has been the Resident Manager since 2001 and has worked in the building for 18 years. Boris testified that the leak from Apartment 23A was caused by a broken hose, which connected the toilet tank to the water valve. Boris determined the source of the leak and stopped it by closing the water flow to the toilet in Apartment 23A.
In July 2009, after being shown the picture in the Subject Premises, Petitioner contacted its insurance carrier, who retained RTK and a remediation company. The remediation company worked at the Subject Premises for approximately two weeks. Boris testified additional remediation was required in the Subject Premises, after the initial work was done, because Respondent had not removed all of her belongings from the Subject Premises. A total of seven apartments in the Subject Building were damaged as a result of the leak and required mold remediation.
Boris credibly testified that access to the Subject Premises was limited, because Respondent was often absent from the Subject Premises, or unavailable during this period, and that this delayed the work done in the Subject Premises. Boris had a pass key for apartments in the building, which could only be used for emergency purposes. Boris called Respondent after the initial remediation was completed, and advised Respondent that further work was necessary but could only be done effectively if Respondent's belongings were removed from the Subject Premises. Respondent was advised by Boris to contact her insurance company regarding the removal and storage of her belongings so the additional work could be done. Despite Boris' urging Respondent to move quickly in this regard to prevent additional mold growth, Respondent took an excessively long time to accomplish the removal of the furniture.
DISCUSSION
Petitioner established its prima facie case that there is $12,930.20 due in rent and additional rent exclusive of legal fees and charges for the storage bin. The court does not find that the charges for the storage bin are rent for the Subject Premises, the charges are not pursuant to the proprietary lease between the parties but a separate license agreement (Ex 10) and said claim is severed from this proceeding without prejudice.
The burden thus shifts to Respondent to establish a defense for the non-payment of the other sums due as rent and additional rent under the proprietary lease. Respondent's only remaining affirmative defenses and counterclaims for constructive eviction and breach of warranty of habitability.
Constructive Eviction
In order to establish a claim of constructive eviction, Respondent must establish by a preponderance of the credible evidence that Petitioner's “... wrongful acts substantially and materially deprived (her) of the beneficial use and enjoyment of the premises (Barash v. Pennsylvania Terminal Real Estate Corp. 26 N.Y.2d 77, at 83).” In this case, it is undisputed that the cause of the leak was solely the result of a malfunction of a toilet hose of another shareholder, and Respondent failed to meet her burden of establishing that Petitioner committed any wrongful act, and thus Respondent failed to meet her burden in establishing constructive eviction [ 905 5th Ass v. 907 Corp 47 AD3d 401; Silverman v. 145 Tenants Corp 248 A.D.2d 261 ( shareholder failed to establish breach of warranty of habitability claim based on ceiling leaks caused by upstairs neighbor on two occasions ) ].
Respondent implicitly acknowledges this in her complaint in Supreme Court where Constructive Eviction is only asserted against the shareholders of Apartment 23A and Petitioner is only sued for negligence not constructive eviction.
Respondent also failed to establish that she abandoned or failed to use the Subject Premises or a portion of the Subject Premises as a result of any condition created by the leak. As noted above, to the extent Respondent asserts that she lived with friends or stayed in a hotel because of conditions in the Subject Premises, the court finds that testimony lacks credibility and is unsubstantiated by any other evidence in the record.
The primary conditions Respondent complained of in her testimony related to the work undertaken by Petitioner to remedy the mold condition in the Subject Premises. Prompt reasonable action taken by Petitioner to correct a condition caused by another shareholder, cannot serve as the basis for a claim based on warranty of habitability or partial constructive eviction (; 29–45 Tenants' Corp v. Rowe, NYLJ, Jan 8, 1992, p 23, col 4).
In Rowe the shareholder asserted claims of breach of warranty of habitability and constructive eviction for periods when he was unable to use his terrace because of repair work being done by the Board. The Court dismissed these claims noting that the work was necessary to effectuate repairs and was done as expeditiously as possible. The Court held:
Being a member of a cooperative is very different from being a rental tenant. Respondent is a part owner of the building; it is in his best interest to ensure that the building is properly maintained to protect his investment.... An owner cannot be given financial compensation against himself and fellow owners for necessary maintenance.
Id see also 315–321 Eastern Parkway Development Fund v. Wint–Howell 9 Misc.3d 644 (holding work to repair roof leaks not a basis for warranty of habitability claim by shareholder where work was necessary and proper.
Respondent failed to establish that any condition in the Subject Premises was based on Petitioner's failure to act or as a breach of the proprietary lease. In 815 Park Avenue Owners Corp, Inc. v. Lapidus (227 A.D.2d 353) the Appellate Division held that a proprietary lessee was not entitled to set offs against maintenance owed on an apartment based on water damage to the apartment where the lessee failed to show that water entered the apartment as a result of the lessor's negligence or violation of the proprietary lease.
Respondent failed to establish any condition caused by Petitioner that required her to vacate the Subject Premises or a portion thereof for any period of time. Based on the foregoing, Respondent's sixth affirmative defense and second counterclaim are dismissed.
Petitioner argues Respondent's constructive eviction claim is barred by a one year statute of limitations. However, Petitioner filed no responsive pleading to the counterclaims raising this affirmative defense and thus the court does not further address the statute of limitations claim.
Breach of Warranty of Habitability
Respondent's remaining affirmative defense and counterclaim asserts a breach of the warranty of habitability. RPL 235–b(1) provides:
In every written .... rental agreement for residential premises the landlord or lessor shall be deemed to covenant and warrant that the premises so leased ... 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.
It is well settled that the warranty of habitability applies to shareholders in cooperative apartments (Suarez v. Rivercross Tenants' Corp 107 Misc.2d 135). “The implied warranty of habitability sets forth a minimum standard to protect tenants against conditions that render residential premises uninhabitable or unuseable. Tenants alleging breach of warranty of habitability must provide evidence sufficient to support their claims ( Kent v. 435 East 11th Street 80 A.D.2d 106, 113 citations omitted ).”
The no set-ff provision of the governing Proprietary Lease
Paragraph 12 of the Proprietary Lease provides in pertinent part “(t)he Lessee will pay the rent to the Lessor upon the terms and at times herein provided, without any deduction on account of any set-off or claim which the Lessee may have against the Lessor ...”.
As noted above, Judge Feinman already ruled in denying Respondent's consolidation motion, that this provision requires Respondent to pay her maintenance without set off and sue separately for damages in the breach of contract action pending in Supreme Court. Petitioner argues that Judge Feinman's decision collaterally estopps Respondent from asking this court to reach a different conclusion. The court finds that since Judge Feinman's order was issued on a motion to consolidate, and in a prior summary proceeding, it does not constitute collateral estoppel, nor can it even be considered law of the case, but the court does consider it persuasive authority [Erickson v. Cross Ready Mix, Inc. 98 AD3d 717 ( law of case applies only to legal determinations that were necessarily resolved on the merits in a prior decision ); International 800 Telecom Corp. v. Kramer Levin et al 155 Misc.2d 975 ( party seeking benefit of collateral estoppel must show the same issue was explicitly or necessarily decided in the prior litigation and is dispositive in the present case ).
RPL 235–b(2) provides “(a)ny 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.”
However, in Dune Deck Owners Corp. v. Liggett 34 AD3d 523, the Cooperative corporation sued individual shareholders for maintenance arrears and late fees, and the Appellate Division, Second Department held that the shareholders had waived the right to any off set for arrears, by agreeing to the terms contained in the proprietary lease. Thus the clause has been found to be enforceable not only by Justice Feinman in the prior litigation, but also pursuant to controlling appellate authority.
Contracts limiting the manner in which a tenant can assert a warranty of habitability claim have been upheld by appellate courts in certain circumstances. For example, in 1050 Tenants Corp v. Lapidus 16 Misc.3d 70, the Appellate Term, First Department, held that a stipulation of settlement requiring prior written notice to the landlord before a tenant could withhold rent was not an impermissible modification of RPL 235–b. The Court held:
It is well settled that in order for a tenant to recover an abatement for breach of the warranty of habitability, the landlord must have actual or constructive notice of the existence of the condition in need of repair'. .... (T)here is no blanket prohibition against sophisticated parties, represented by counsel, entering into a so-ordered settlement stipulation setting forth the form of the notice that must be provided before rent or maintenance is withheld. .... The stipulation neither waived nor substantially impaired tenants' capacity to rely upon the warranty of habitability.
Id at 72–73.
Similarly, courts have routinely required shareholders to pay ongoing maintenance pending resolution of litigation based on warranty of habitability. For example, in Kramer v. West 15th St. Owners 236 A.D.2d 341, The Appellate Division held denial of the shareholder's request to stay her obligation to pay the assessments, pending determination of her action for breach of warranty of habitability was proper, noting that the coop needed the funds for repairs. The court held “(s)hould it be determined in the underlying action that plaintiff has been over-assessed, or is entitled to an abatement, a monetary adjustment can be made at that point ( id at 342).”
Similarly, in Caspi v. Madison 79 Associates, Inc. 85 A.D.2d 583, a shareholder wished to withhold maintenance payments pending litigation of a warranty of habitability claim, the court held that the pending claim “... should not provide a license to withhold the monthly maintenance and other charges from the ... cooperative corporation, which is but a formal association of plaintiff's fellow tenants, for an indefinite period of time ( id at 583–584). Thus the Appellate Division directed that the shareholder continue to pay maintenance pending the litigation of the warranty of habitability claim.
Moreover, some lease provisions have been held to be a violation of public policy in a conventional landlord-tenant relationship, but permissible in the context of proprietary lease. For example, in Seamans Family Limited Partnership v. Kennedy 177 Misc.2d 345, the court held that a conditional limitation in a lease which provided for termination on nonpayment of rent was a violation of RPL 235–b(2). However, shareholders are subject to termination based on the nonpayment of maintenance and such provisions have explicitly held to be enforceable (see eg Goldcrest Realty Co v. 61 Bronx River Road Owners Inc. 83 AD3d 129 ).
There is nothing in RPL 235–b that suggests that the remedy must be available to shareholders as a defense in a summary proceeding, where the contract governing the tenancy limits the assertion of that claim to an action instituted by the shareholder. “The award may take the from 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 a summary proceeding ... we do not comment upon the availability of other remedies not implicated under the facts presented here (Park West Management Corp. v. Mitchell 47 N.Y.2d 316, 329).
Furthermore, in assessing whether the no set off provision in the proprietary lease violates public policy, a review of the legislative intent would suggest it does not. In a memorandum filed with the warranty bill, the Governor stated that the doctrine could be used affirmatively or defensively and that “(i)t will be courts' function to fashion remedies appropriate to the facts of each case (Mahlmann v. Yelverton 109 Misc.2d 127 citing McKinney's 1975 Session Laws pg 1760).
Senator H. Douglas Barclay emphasized that the remedy provided by 235–b was intended to sound in contract rather then tort, stating:
We wish to leave the greatest degree of flexibility to the courts to fashion an appropriate remedy in each case. Since we're treating a lease or rental agreement for residential purposes as a contract the full range of remedies in contract law could be considered by the court. These include damages, specific performance and recision ( id citing 6/17/75, Senate, 3rd Reading, pgs. 7771).
Accordingly, there is no reason to hold that the provision in the proprietary lease herein should not be enforced. If Respondent had complied with the provision to pay her maintenance without offset, she could litigate all relevant claims in the prior action she had commenced in Supreme Court, where all the claims between all the parties could be heard at one time. This seems particularly appropriate in the case at bar, where the evidence shows Petitioner was not in any way responsible for causing any conditions in the Subject Premises, and the leak was caused by a condition that was the responsibility of another shareholder.
However, assuming arguendo that Justice Feinman's ruling was not binding on the parties in this proceeding, and that the clause was not held to be enforceable, the court still finds Respondent has failed to establish an entitlement to relief on the warranty of habitability claim in this proceeding.
Respondent's failure to reside in the Subject Premises in 2009 and 2010 precludes recovery for breach of warranty of habitability
The Court finds that Respondent failed to establish that she lived in the Subject Premises during the relevant period, and that Respondent's occupancy of the Subject Premises was primarily in connection with her use of the premises as her law office. At best, Respondent asserts she lives in the Subject Premises on a part time basis, but the Court finds that for the relevant period of time this assertion lacks credibility. The leak occurred in April 2009. Respondent married in May 2009. Respondent acknowledges that her husband lives in Long Island and does not live at the Subject Premises. Respondent, an attorney, acknowledges that on her tax returns she represented to the government that she resided with her husband in Long Island during these years. Respondent showed no evidence of paying New York City residency taxes.
Respondent lists the Subject Premises as her law office, and takes tax deductions for use of portions of the premises as her office.
Respondent acknowledges that she did not pay New York City income tax for this period in her post trial memo, but asserts that should be irrelevant to this Court's determination.
It is well settled that the breach of warranty of habitability does not apply to a commercial tenancy (Rivera v. JRJ Land Property Corp. 27 AD3d 361), nor does it apply to a cooperative apartment that the shareholder does not reside in or resides in part time. In a case directly on point, Genson v. Sixty Sutton Corp. 74 A.D.2d 560, the Appellate Division held:
Plaintiff, who was not a full time resident of her cooperative apartment, was not entitled to compensation from the cooperative corporation for breach of warranty of habitability during the period in which she was not living there, especially in light of her admitted inability to recall or document the amount of time she spent there before the mold infection allegedly prompted her to begin staying in hotels.
(Id at 560; see also Leventritt v. 520 East 86th Street, Inc. 266 A.D.2d 45;Halkedis v. Two East End Avenue Apartment Corp. 161 A.D.2d 281;Frisch v. Bellmarc Management Inc 190 A.D.2d 383;25 W 13th St. Corp. v. Gerevitz 128 Misc.2d 74;25 W 13th Street Corp v. Gerevitz 128 Misc.2d 74).
Moreover, the court notes that the evidence established that Petitioner took prompt action to correct the mold condition that was discovered. Respondent limited and delayed access, and failed to cooperate with recommended procedures, which prolonged and quite possibly exacerbated the original condition. These factors also weigh against awarding any abatement in the case at bar (see eg Solow v. Wellner 154 Misc.2d 737 holding landlord's effective action in remedying condition rendered inappropriate rent offset based on warranty of habitability ).
Based on the foregoing, the court finds Respondent failed to establish an entitlement to relief on her sixth affirmative defense and counterclaim, and the defenses and counterclaim are dismissed.
CONCLUSION
The court awards Petitioner a final judgment in the amount of $12,930.20 for all rent due through September 2012. Issuance of the warrant is stayed five days for payment.
This constitutes the decision and order of this Court.