Opinion
No. C–63–12 SC.
2012-08-20
FREDA, Plaintiff, v. Velma PHILLIPS, Defendant.
JONAH TRIEBWASSER, J.
Plaintiff is suing defendant for the return of rent paid to defendant covering the period of September 2011 to June 2012 in the amount of $3,000.00. Plaintiff claims that she is due this amount because of “unacceptable living conditions.”
At the trial of this matter, plaintiff was represented by Pamela Gabiger, Esq. Defendant appeared pro se.
Plaintiff's counsel expanded the claim to invoke the implied warranty of habitability. The implied warranty of habitability is a creature of statute and, as such, must be strictly construed. The statute in question, section 235 of the real property law provides as follows:
§ 235. Wilful violations. 1. Any lessor, agent, manager, superintendent or janitor of any building, or part thereof, the lease or rental agreement whereof by its terms, expressed or implied, requires the furnishing of hot or cold water, heat, light, power, elevator service, telephone service or any other service or facility to any occupant of said building, who wilfully or intentionally fails to furnish such water, heat, light, power, elevator service, telephone service or other service or facility at any time when the same are necessary to the proper or customary use of such building, or part thereof, or any lessor, agent, manager, superintendent or janitor who wilfully and intentionally interferes with the quiet enjoyment of the leased premises by such occupant, is guilty of a violation.
Plaintiff, in her testimony, and in the extensive exhibits she offered into evidence, made no claim that the landlord failed to provide the statutorily mandated “... hot or cold water, heat, light, power, elevator service, telephone service ...” Instead, plaintiff claims that landlord failed to control the other tenants who allegedly were harassing her. In support of her contention, plaintiff introduced numerous police reports regarding alleged incidents at the boarding house in question.
It is significant that, with the exception of one incident discussed below, the police made no arrests based upon any of plaintiff's claims. On one occasion, the police did issue an appearance ticket alleging harassment, but that matter was dismissed by this Court when the People declined to prosecute ( People v. Geoghegan, Index No. 12070029.01 )
Defendant, in her testimony, averred that many-if not all-of the incidents complained of by plaintiff were instigated or exacerbated by plaintiff herself.
The Court invited both sides to provide it with any statutory or case law authority that would support the proposition that the landlord, under the implied warranty of habitability, had to supervise the behavior of co-tenants.
Despite the industry of plaintiff's counsel, she was unable to provide any such clear authority. It is the finding of the Court that the landlady/defendant is under no obligation to be the den mother of her tenants and assure that they get along. Therefore, plaintiff's claim is dismissed in its entirety.
SO ORDERED.