Decided March 31, 2011.
STARK STARK, Attorneys for Petitioner, By: Stephen Lasser, Esq., New York, New York.
ALEXANDER ZADRIMA ESQ, Attorney for Respondent, Bronx, New York.
This summary nonpayment proceeding was commenced by 2199 HOLLAND AVENUE APT. CORP.(Petitioner) seeking to recover possession of Apartment 1B at 2199 HOLLAND AVENUE, BRONX, NY 10458 (Subject Premises) based on the allegation that HARRIS SRDANOVIC ("Respondent"), the proprietary lessee of record had failed to pay maintenance due for the Subject Premises, pursuant to the proprietary lease between the parties. PROCEDURAL HISTORY
Petitioner issued a ten day rent demand dated December 7, 2009, seeking $11,059.24 in rent arrears through November 2009. The petition issued on or about January 26, 2010. Respondent failed to file an answer, and on June 22, 2010, Petitioner moved for an order amending the petition nunc pro tunc because the address of the courthouse was incorrect in the petition, and Respondent's name was inverted. The motion was granted on default and Respondent's time to answer was extended. On or about September 13, 2010, Petitioner applied for and received a default judgment based on Respondent's failure to answer. The warrant of eviction issued on October 18, 2010.
On or about October 29, 2010, Respondent moved for an order vacating the default judgment. Respondent asserted that there were severe repairs requiring correction, and that he had withheld the rent based on Petitioner's failure to make the repairs.
On November 12, 2010, the parties' stipulated to adjourn Respondent's Order to Show Cause to December 7, 2010, for Petitioner to submit opposition papers. The stipulation also provided that Respondent would give Petitioner access to the Subject Premises on November 29 and November 30 from 9am to 10 am to inspect the conditions asserted.
On December 7, 2010, Respondent's motion to vacate the default judgment was granted by the Court. Respondent was given until December 18, 2010 to pay $10,372.44, without prejudice to the rights of either party, and upon payment the judgment and warrant would be vacated. Respondent was permitted to assert a defense and counterclaim based on the breach of warranty of habitability, and the matter was set down for a hearing on that issue, as well as on Petitioner's claim for attorneys' fees.
Additionally, the Court ordered an inspection of the Subject Premises. The inspection took place on December 15, 2010, and resulted in three class B violations being placed on the Subject Premises. The violations issued were for broken/defective plastered surfaces on the kitchen ceiling, a leak in the kitchen ceiling and for a roach infestation throughout the Subject Premises.
The Court commenced the hearing on January 14, 2011. However after the hearing commenced, Respondent made an application to obtain counsel, and Petitioner sought a continuance, as Petitioner did not have the proprietary lease between the parties available to put into evidence. The hearing was adjourned on consent. On February 14, 2011, Alexander Zadrima Esq. appeared for Respondent. On March 25, 2011, the hearing continued and concluded. However, the issue of attorneys' fees was reserved until after the Court rendered a decision on Respondent's abatement claim, at the request of Petitioner's counsel and on conent of all parties.
Respondent testified first on his own behalf. Respondent stated that he purchased the Subject Premises approximately three and one half years ago, and that it was in very bad shape. Respondent testified that he renovated the Subject Premises on his own.
Respondent testified that he first experienced a problem with a leak in the kitchen ceiling approximately two years ago, and that he fixed it on his own, but the leak recurred approximately eight or nine months later. Respondent testified that he attempted to contact the managing agent, but that he only reached voice mail. Respondent testified that he notified th Super of the leak, and that the Super believed the leak was caused by a pipe from upstairs. Respondent offered into evidence four photographs, taken on January 13, 2011, to show the area of the ceiling that he asserted was leaking (Respondent's Ex. 2 a-d).
Respondent also testified that the Subject Premises had been without gas for four months. Respondent put into evidence two written memos (Respondent's Ex 1) from Petitioner regarding the lack of gas. The gas was shut down in November 2010.
Respondent testified that he was seeking a 20% abatement of maintenance for a two year period. Respondent testified that the monthly maintenance was approximately $616.40 per month. On Cross-examination, Respondent testified that he had fixed the area around the leak twice since the initial renovation of the apartment.
The next witness to testify on behalf of Respondent was Damir Sdanovic, Respondent's brother. Mr. Sdanovic testified that he visits Respondent on occasion, and that he has spent a lot of time at the Subject Premises. Mr. Sdanovic testified that the Subject Premises had leaks on and off since Respondent purchased the apartment. Mr. Sdanovic testified that in late 2009 or early 2010 he advised Respondent to complain to Petitioner and to withhold rent until the condition was fixed. Mr. Sdanovic testified that at present the leak was not active and that there was no water visibly dripping. However, Mr. Sdanovic also testified that the area surrounding the leak was still damp. Mr. Sdanovic testified that this condition and the lack of gas had prevented Respondent from using his kitchen for approximately two years.
The next witness to testify was Adrian Morgan, who testified for Petitioner.Mr. Morgan is the managing agent for the building, and he testified that he had never been notified about a leak in the Subject Premises. Mr. Morgan testified that on December 12, 2010, he inspected all of the B Line apartments in the building, and found no leak coming from any of these apartments. Mr. Morgan testified that he had been the building manager for approximately one and a half years.
The hearing continued on March 25, 2011. Mr. Morgan took the stand again to continue his testimony. Mr. Morgan testified about Respondent's payment history and stated that Respondent had only made three payments since becoming a shareholder. Mr. Morgan testified that the first payment Respondent made was in March 2010, when he paid approximately $10,000.00.After said payment, Mr. Morgan testified that there was approximately $4000 in arrears remaining due. Respondent then paid approximately $10,000 in January 2011, in accordance with the Court's order, and after a third payment made in February there remained approximately $1200 in arrears.
Mr. Morgan testified that his office had never received any repair requests. Mr. Morgan testified that in January 2011 the Super found the source of the leak in the apartment above the Subject Premises. Mr. Morgan testified that the source of the leak was a trap under the sink for waste and that the trap was repaired.
Mr. Morgan testified that there was call center in place to receive complaints regarding conditions in the Subject Premises, but that the call center was recent, and that prior to the call center, complaints regarding repairs went to his desk. Mr. Morgan testified that the Super also receives complaints regarding repairs, but that the Super never makes repairs without speaking to Mr. Morgan first. Mr. Morgan testified that the Super never told him about a leak in the Subject Premises.
Mr. Morgan testified that he told the Super to go into the Subject Premises on the stipulated dates in November and that the Super was told to go on November 19 sometime between 10 am to 1pm, and on November 20, Mr. Morgan told the Super to go in the afternoon. Mr. Morgan was not aware that the stipulation provided for access specifically between 9am and 10 am on these dates.
Mr. Morgan had no first hand knowledge about what occurred on these dates and his testimony was solely based on what the Super told him had occurred. Mr. Morgan testified that he himself had never attempted at any point to gain access to the Subject Premises, prior to March 8, 2011, when he did go to the Subject Premises.
The Court found Mr. Morgan's testimony not to be very credible and of limited probative value as it was not based on first hand knowledge. No other witness was presented by Petitioner.
After Mr. Morgan's testimony, Respondent took the stand again. Respondent testified in a little greater detail about the problems with the gas and the stove. Respondent testified that in addressing the gas in the kitchen, Petitioner's agents had broken the granite counter top. Respondent put another photograph into evidence which showed the condition, as of the date of the hearing, of the gas pipe behind the stove(Respondents Ex. 3).
Respondent testified that after the repair to the leak in the upstairs apartment in January 2011, Petitioner had never come back to the Subject Premises to repair the damage to the ceiling, resulting from the leak. Respondent testified that he paid $5000 to have the kitchen repaired in February 2011.
Damir Srdonvic was recalled to the stand after Respondent's testimony was concluded. Mr. Srdonvic testified that in addition to the Super, a porter had been notified of the leak condition in the spring of 2010. Mr. Srdonvic also testified that Super had been in the Subject Premises, not long after Respondent had purchased the apartment and that the Super was shown the leak.
Finally, Mr. Morgan was recalled by Petitioner and his remaining testimony primarily addressed issues with the gas pipes being repaired.
The Court finds that Respondent established an entitlement to an abatement at the hearing. Specifically, Respondent established that there was a condition in the Subject Premises that was the responsibility of Petitioner to address, and that he gave notice of the condition to the Super. Respondent's testimony regarding notice to the Super was uncontested, as the Super was not called to testify.
The Court finds that the period for the abatement is from January 2010 through January 2011. The Court finds that during this period a leak in the kitchen persisted in the Subject Premises. Additionally, the Court finds that Respondent had no gas for four months from November 2010 through January 2011. The Court finds that these conditions limited Respondent's use of the kitchen, during the period that the condition existed.
The Court finds that Respondent is entitled to a 20% abatement for the period of January 2010 through October 2010, based on the ongoing leak. The Court further finds that Respondent is entitled to a 25% abatement for the period of November 2010 through January 2011, based on the leak and the lack of gas.
The Court finds that the leak was repaired as of January 2011, and that the gas was restored in February 2011.
Based on a monthly maintenance of $616.40, Respondent is entitled to an abatement of $1232.80, for the period of January 2010 through October 2010, and an abatement of $462.30 for the period of November 2010 through January 2011. Thus Respondent is entitled to an abatement totaling $1695.10.The amount of the abatement should be applied to arrears due, if any, for February 2011 forward.
The amount sued for in the petition has been satisfied. Petitioner made no application at the hearing to amend the petition to seek rent that had come due through March 2011. The proceeding is dismissed.
Petitioner's motion for attorneys' fees is denied. In order to determine whether a party is the prevailing party entitled to legal fees, the Court must consider the scope of the litigation and the results of the litigation ( Excelsior 57th Corp. v. Winters 227 AD2d 146). In this proceeding, Petitioner obtained a default judgment, which the Court vacated upon payment of the arrears. Respondent did succeed in obtaining an abatement, but did not establish that the conditions were the sole basis for him to withhold rent in the first place. Given the foregoing, the Court finds that the outcome of the litigation can not be considered substantially favorable to either side, and Petitioner's motion for attorneys' fees is denied ( 339-347 E. 12th St. LLC v Ling 2011 NY Slip Op 21084, — NYS2d — App Term, 1st Dept).
This constitutes the decision and order of this Court.