Opinion
July 7, 1972
Daniel Finkelstein for petitioner.
Michael Mushlin for respondent.
According to tenant's testimony, her apartment is a chamber of horrors:
No heat No gas for stove No hot water No running water in kitchen Low water pressure in bathroom Leaking pipes in bathroom Toilet does not flush Overhead toilet bowl breaking off from wall Multiple cracks and holes in walls and ceilings Ceilings and walls soggy from frequent leaks Broken window panes Windows without cords to hold them open No exterminator service Ever-present rats and cockroaches No superintendent Filthy public corridors
The Housing Director of the West Harlem Community Organization corroborated everything tenant said. Evidence of multiple code violations was introduced, some of them dating back over a year.
The court made a personal visitation to the premises, accompanied by a court officer and on notice to both parties. The verbal description of the conditions on the record was not sufficient to prepare me for what my eyes now saw. Many of the apartments in the building are now vacant, and some of them have apparently become the refuge of winos and addicts. A posted notice from Consolidated Edison indicated that a shutoff of electricity would soon be added to the travails of tenant.
Landlord did not really controvert the sad, indeed tragic, story of this building. He lamely denied knowledge of needed repairs except to the water and heating pipes necessitated by an earlier fire in the basement. This is belied by his several visits to the premises in an attempt to collect rents since he took over the building in October, 1971. Concededly he has not even initiated, let alone diligently prosecuted, the repairs to pipes which he admits are needed. Such knowing indifference to the suffering of his tenants over such an extended period can only evidence a determination to force them out.
The facts here render code enforcement remedies futile. Even a section 755 order (Real Property Actions and Proceedings Law, § 755) requested by tenant as alternative relief would be to no real avail. Why should she pay money even into court for what she is receiving? It is probably too late for even an article 7-A order (Real Property Actions and Proceedings Law, art. 7-A) because of the reduced number of people still living in the building. Regretfully I conclude that Mrs. Stewart will soon follow her many former cotenants out into the streets. Since reaching that conclusion, my forebodings have been confirmed. I have been advised a few days ago by counsel for Mrs. Stewart that the Department of Health has ordered the building vacated.
I find that the defense of breach of implied warranty of fitness for human habitation has been more than sustained ( Amanuensis, Ltd. v. Brown, 65 Misc.2d 15). The rents sought in this proceeding from November, 1971, through March, 1972, are held abated, and tenant may have judgment dismissing the petition with prejudice, together with the costs of the proceeding.
The court commends this case to the attention of the appropriate city and State legislative assistants and committees. It demonstrates graphically how rapidly events overtake and render impotent currently available legislative remedies and how desperate is the need for new approaches if we are to conserve huge segments of New York's dwindling housing resources.