Jul 5, 2017

Bed Bug [Litigation] Infests the Courts

Landlord-Tenant Law Book

Over the last several years litigation relating to bed bugs has resulted in many decisions by our Courts.  The proceedings raised issues relating, among others, to the warranty of habitability; causal connections; duty to mitigate and remediate; abatement of rent; right of access; cost sharing and shifting; proof of injury; and the scope of legally-cognizable damages.

A few examples follow:

Davila v. Sleepy’s, LLC, 2016 NY Slip Op 06112 (App. Div. 1st Dept. September 22, 2016)
The Appellate Division, as follows, summarily affirmed dismissal of the complaint:

Plaintiffs, who are members of the same family, allege that they sustained bed-bug bites after a mattress they purchased from Sleepy’s was delivered to their home by Precise. The evidence submitted by plaintiffs in opposition, including deposition testimony and an affidavit of an entomologist, raises triable issues as to whether negligent actions or omissions of Sleepy’s or Precise resulted in the introduction of bed bugs into plaintiffs’ home, and whether such bugs caused plaintiffs physical injury through bites, as well as, consequential damages on account of plaintiffs’ claimed efforts to eradicate the bug problem. The circumstantial evidence relied upon by plaintiffs in support of their claims offered a basis upon which a jury could reasonably and logically infer liability for the alleged bug infestation…On this record, however, there is no evidence from which a jury could rationally conclude that defendants engaged in conduct sufficiently extreme and outrageous to support a recovery for emotional distress or mental anguish.

Concluding that:

[W]e affirm the dismissal of the complaint solely insofar as the complaint seeks to recover for alleged psychological injury, and modify to deny the motion to dismiss the complaint insofar as it seeks damages for alleged bodily or pecuniary injury.

Bour v. 259 Bleecker LLC, 104 A.D.3d 454 (1st Dept. March 12, 2013)

The Appellate Division described the submissions in the Court below:

Plaintiff submitted both testimonial and documentary evidence supporting her claim that there was a bedbug infestation in the apartment and that she sustained bedbug bites. The absence of any medical treatment for the bites, while significant to the value of the damages sought, does not mandate dismissing the claim for personal injury damages as a matter of law[.]

Concluding that:

Plaintiff, however, failed to show that defendant’s failure to maintain the property in a reasonably safe condition unreasonably endangered her physical safety or caused her to fear for her safety so as to sustain the claim for negligent infliction of emotional distress…Further, defendant’s leasing of the apartment to plaintiff while aware of a bedbug history does not rise to the level of outrageous conduct required to sustain a claim for infliction of emotional distress, especially since at the time this case was filed there was no legal obligation for landlords to give a prospective tenant notice of bedbug infestation history…and defendant had been treating the condition before plaintiff moved in. For the same reason, we find that in renting the apartment defendant was not “morally culpable, or actuated by evil and reprehensible motives” so as to warrant punitive damages…Nor did defendant engage in pervasive or grave misconduct of a quasi-criminal nature affecting the public in general[.]

85-87 Pitt St., LLC v. 85-87 Pitt St. Realty Corp., 83 A.D.3d 446 (App. Div. 1st Dept. April 7, 2011)

The Appellate Division described the prior proceedings:

[Supreme Court] granted defendants’ motion to dismiss the causes of action alleging fraudulent inducement, fraudulent misrepresentation and fraudulent concealment, unanimously affirmed, with costs.

Concluding that:

The contract contained a merger clause setting forth that plaintiff accepted the building “as is” after having had an opportunity to inspect the premises.  The provision specifically disclaimed reliance on any representations as to the physical condition of the building.  Thus, the merger clause extinguished any claims arising from defendants’ alleged misrepresentations that the building did not have a bedbug problem…A bug infestation is not a matter peculiarly within a seller’s knowledge that requires disclosure by the seller.  An infestation could be discovered with reasonable diligence and an inspection of the premises[.]

Kane v. SDM Enters., Inc., 125 A.D.3d 939 (App. Div. 2d Dept. February 25, 2015)

The Court summarized the allegations of the complaint:

[D]efendant SDM Enterprises, Inc.…rented an apartment to the plaintiff knowing that it was infested with bedbugs and without informing the plaintiff of the infestation. The complaint further alleges that SDM’s conduct was intentional and demonstrated a “reckless disregard” for the plaintiff’s health and property, and that SDM’s conduct in failing to inform the plaintiff of the infestation and in failing to eradicate the bedbugs violated the Administrative Code of the City of New York[.]

Defendant’s contentions in Supreme Court:

On its motion for summary judgment limiting the plaintiff’s damages, SDM contended that the plaintiff failed to make diligent efforts to mitigate her damages. Specifically, SDM asserted that, on July 14, 2011, it offered the plaintiff the opportunity to vacate the apartment without any repercussions and with a full refund of the money that she had already paid pursuant to the lease. SDM asserted that since the plaintiff decided to remain in the apartment beyond July 14, 2011, it was not liable for any damages that the plaintiff accrued beyond that date. In support of its motion, SDM submitted the transcript of the plaintiff’s deposition testimony and the affidavit of its principal, Salvatore Mendiola, which demonstrated that the plaintiff moved into the subject apartment on July 1, 2011, and that on July 14, 2011, after the plaintiff had complained to SDM about the bedbug infestation, SDM offered the plaintiff the option to forfeit the lease and to refund the plaintiff her money.

Concluding that:

Because the plaintiff alleges that she sustained injuries as a result of SDM’s reckless and intentional conduct, SDM failed to establish, prima facie, that the plaintiff had the “obligatory burden to endeavor to avert [the] injurious consequences” of SDM’s conduct, i.e., a duty to mitigate damages[.]

Perez v. Price Link Inc., 50 Misc.3d 135(A) [App. Term, 1st Dept. January 19, 2016]

The Court, as follows, summarily dismissed the appeal:

Plaintiff brought this small claims action alleging that a box spring and mattress sold by defendant was the cause of a bedbug infestation in plaintiff’s apartment. Applying the narrow standard of review governing appeals in small claims actions…and giving due deference to the trial court’s express findings of fact and credibility…we affirm the dismissal after trial of plaintiff’s action. The record supports the conclusion that plaintiff failed to establish any “causal connection” between any act or omission by defendant, and the infestation.

Carvajal v. Selechnik, 48 Misc.3d 128(A) [App. T. 1st Dept. June 30, 2015]

The Court summarily held that:

On a nonjury trial, the decision of the fact-finding court should not be disturbed unless the court’s conclusions could not have been reached under any fair interpretation of the evidence…Applying that standard of review here, we sustain the court’s liability determination in this action seeking damages arising from a bedbug infestation in plaintiff’s apartment. The trial court, as factfinder, was warranted in finding that defendant was partially liable for plaintiff’s damaged furniture due to its failure to “timely eradicate said infestation.” Insofar as defendant argues that plaintiff’s remedy for the bedbug infestation should be limited to damages arising from a breach of the warranty of habitability, this contention is without merit[.]

Gawad v. Aviad, 37 Misc.3d 126(A) [App. T. 2d Dept. September 19, 2012]

The Court described the prior proceedings:

In separate small claims actions, Aisha M. Gawad and Natalia Ospina…who were roommates in an apartment that they rented in a multiple dwelling owned by defendant, seek to recover for, among other things, damage to their property arising from a bedbug condition in the apartment, and the return of their security deposits. Defendant counterclaims, in both actions, for, among other things, unpaid rent. After a joint nonjury trial of the two actions, plaintiff Gawad was awarded the principal sum of $1,986.78 and plaintiff Ospina was awarded the principal sum of $2,234, and defendant’s counterclaims were dismissed.

Concluding that:

In our view, there was ample evidence introduced at the trial to establish the existence of a bedbug condition in the apartment, and that this condition rendered the apartment uninhabitable as of May 23, 2010 and constructively evicted plaintiffs therefrom. Thus, plaintiffs are not liable for the rent accruing beginning with June 1, 2010…and they are each entitled to the return of their respective $625 security deposits. However, plaintiffs are not entitled to recover, as damages for a breach of the warranty of habitability…the rent that they paid for the last nine days of May 2010, as defendant was not notified of the bedbug condition until May 23, 2010, and a landlord must be allowed a reasonable amount of time to correct a condition. In addition, plaintiffs are not entitled to recover any damages for breach of the duty owed pursuant to the Multiple Dwelling Law, as plaintiffs did not introduce competent proof to establish that defendant had been on notice before May 23, 2010 of the bedbug condition…Finally, no basis was shown for an award to plaintiffs of the utility charges they had incurred after May 23, 2010. Consequently, we find that substantial justice between the parties…requires that the award to each plaintiff be reduced to the principal sum of $625, and we modify the judgments accordingly.

London Terrace Assoc. v. Perykaz, 35 Misc.3d 130(A) [App. T. 2d Dept. December 5, 2011]

Appellate Term summarily concluded that:

In this holdover proceeding, landlord established, based on the credible evidence, that tenant had violated her lease by engaging in objectionable conduct in that she had failed to allow access to her apartment for the treatment of a bedbug condition which was detrimental to the health and safety of the other tenants…Landlord further established that tenant had failed to meaningfully cure this breach within the cure period, in that, although she had then allowed access, she had failed to prepare the apartment so that the exterminators could do their work.  The Justice Court also correctly rejected tenant’s claim that the eviction violated Real Property law § 223-b, as the proof showed that the proceeding was not brought in retaliation for tenant’s complaints to governmental authorities, and as that statute expressly exempts proceedings based on a tenant’s violation of the lease terms from the presumption of retaliation[.].

7 W. 92nd St. Hous. Dev. Fund Corp. v. Vidal, 2017 NY Slip Op 30044(U) [Sup. Ct. N.Y. Co., Kern, J., January 10, 2017]

Supreme Court summarized the facts:

[T]he plaintiff is a residential housing cooperative…and is the owner of the building located at 7 West 92nd Street. The defendant is the shareholder of Apartment 53, pursuant to a proprietary lease. In late 2014, it came to the attention of the [the owner] HDFC that there was an infestation of bed bugs in the building. As a result of the infestation, plaintiff retained M&M Environmental to inspect apartments in the buildings and to design and oversee a bug eradication protocol. M&M Environmental is a professional extermination company with expertise in bed bug infestations. M&M Environmental inspected defendant’s apartment and identified an infestation of bed bugs in her apartment in a written report. M&M Environmental also identified physical conditions in the apartment, including wood particle boards on the walls and suspended ceiling tiles, that caused or exacerbated the bed bug infestation and indicated that such conditions had to be eradicated to permanently cure the infestation and prevent a recurrence. It also found similar conditions in other apartments in the building and repairs have now been effectuated in all of the units requiring repairs other than in defendant’s apartment.

M&M Environmental recommended to the HDFC that the wooden particle boards on the walls and the suspended ceiling tiles be removed and replaced with sheetrock and that the linoleum tile flooring had to be taken up and replaced with new flooring after the extermination. It further informed HDFC that the apartment had to be vacant when the work was performed. M&M Environmental also stated that the clothing and possessions in the apartment had to be treated. The Board of the HDFC accepted all of M&M Environmental’s recommendations. After defendant declined to voluntarily move out of the apartment to effectuate the work, HFDC delivered the report by M&M Environmental to defendant attached to a notice to cure. In the notice to cure, plaintiff informed defendant that it could perform the work on the defendant’s behalf and recover the costs as additional maintenance or defendant could perform the work herself.

The pending proceeding:

After defendant failed to perform the work herself or permit the HDFC to have access to the apartment to perform the work, HDFC commenced the present action for an order allowing it to remove the defendant from the apartment to perform the required work, to perform the work and then to charge defendant as additional maintenance the cost of the work. Defendant defaulted in opposing the order to show cause brought by plaintiff when it commenced the action and plaintiff obtained a judgment and order granting it the requested relief. It is that judgment and order which defendant now seeks to vacate.

Concluding that:

In the present case, defendant has failed to establish a meritorious defense to the present action. Pursuant to the proprietary lease, the obligation to repair the conditions in the apartment required to eradicate the bed bug infestation is imposed on the defendant rather than the HDFC. Paragraph 5.02 of the proprietary lease provides that the shareholder shall take possession of the apartment in its “as is” condition as of the commencement date of the lease and that the shareholder shall be solely responsible for the maintenance and repair of the interior of the apartment. By agreeing to take the apartment in an as is condition, defendant agreed that she would accept any of the conditions in the apartment as they existed when she purchased the apartment. Paragraph 6.01 of the proprietary lease provides that the HDFC may direct the shareholder to repair any part of the apartment, its fixtures or equipment or to remedy an objectionable condition if the item in need of repair or objectionable condition causes or may cause damage to the apartments of other shareholders. It further provides that if the shareholder fails to perform the repair or remedy the objectionable condition, the HDFC may perform the repairs or remedy and recover the costs of such repairs or remedy. Pursuant to the foregoing provisions of the proprietary lease, the responsibility of remedying the objectionable condition of the bed bug infestation in the apartment is the responsibility of the apartment owner and if the apartment owner declines to perform this work when requested to do so by the HDFC, the HDFC has the right to perform the work and recover the expenses of the work from the tenant.

Applying the “business judgment” rule:

Moreover, the determination by the HDFC that there is in fact a bed bug infestation in the defendant’s apartment and that the work recommended by M&M Environmental to eradicate the condition must be performed by defendant is protected by the business judgment rule. The business judgment rule prohibits judicial inquiry into the “actions of corporate directors taken in good faith and in the exercise of honest judgment in the lawful and legitimate furtherance of corporate purposes.”…Thus, such actions taken in good faith and in the exercise of honest judgment cannot constitute a breach of fiduciary duty…However, corporate directors or partners are not protected by the business judgment rule if they “acted (I) outside the scope of[their] authority, (2) in a way that did not legitimately further the corporate purpose or (3) in bad faith”[.]

And admonishing that:

In the present case, the determination by the Board to require defendant to implement the recommendations made by M&M Environmental to eradicate the bed bug infestation in her apartment is protected by the business judgment rule, as a result of which the court need not determine whether there is in fact a bed bug infestation or whether these repairs are required to eradicate the infestation.  The actions were taken by the directors in good faith and in the exercise of honest judgment that this work was required to eradicate the bed bug infestation in the building.  Moreover, there is no evidence that they acted outside the scope of their authority in a way that did not legitimate further the corporate purpose or in bad faith.  Under these circumstances, there is no basis for this court to inquire further into their determination.

Lessons learned: “Bed bug” litigation raises a broad panoply of issues relating to, among others, the warranty of habitability, the assignment of responsibility for remediation and the measure of damages, that implicate, among others, the Real Property Law, the Multiple Dwelling Law, the Housing Maintenance Code, and other statutes, rules and regulations.

West 189, LLC v. Louis-Jeune, 2016 NY Slip Op 31614(U) [Sup. Ct., New York Co. Madden, J., August 23, 2016]

The Courts summarized the action and the pending motions:

In two related actions involving an alleged bed bug infestation, defendant/tenant Luther Louis-Jeune moves…to dismiss the landlord’s complaint in its entirety, and for partial summary judgment and an inquest as to damages with respect to his counterclaim for breach of the warranty of habitability, and an un-pleaded counterclaim for anticipatory repudiation of the lease[.]

The facts:

[B]y lease dated December 10, 2010, Louis-Jeune and Saundra Raymond rented an apartment in the building located at 479 West 146th Street, Apt. 2F, New York, New York, which is owned by West 189, LLC and managed by Sassouni Management, Inc. The lease provided for a term of one year and 17 days, commencing on December 15, 2010 and ending on December 31, 2011. According to his affidavit and deposition testimony, Louis-Jeune first experienced itching and bites on his legs and arms “sometime” in February 2011 and first observed an actual bed bug “on the bed” in March 2011, when he complained to building management.

On March 29, 2011, the managing agent for the building sent a Work Order to the building’s exterminator, Esquire Exterminating Services, Inc.…identifying the “problem” in Louis-Jeune’s apartment as “Bed Bugs.” On April 1, 2011, Esquire treated the apartment for bed bugs, which according to Louis-Jeune consisted of setting off foggers in the living room and bedroom, and placing a “powdered substance” on the bed frame. According to Louis-Jeune, the bedbug infestation only “worsened,” as he continued to experience itching and “swelling welts” and observed bed bugs throughout the apartment, including in his son’s bassinet.

At 3:39 in the morning on May 3, 2011, Louis-Jeune sent an email to the building manager, Allen Harris, that he had discovered “two more bedbugs in our apartment last night” and included “pictures of Saundra’s face after having being bitten repeatedly.” The email expressed his frustration with the bedbug infestation, described the measures he had taken to protect his clothing and furniture, and advised that “we would simply like to leave the building.” The same day, the managing agent faxed a work order to Esquire regarding Louis-Jeune’s apartment, stating: “Bed Bugs. You were here before. Nice kids still have them – they want out of lease – Please arrange ASAP!!!”

The landlord submits an affidavit from the exterminator, Anthony Forlenza, stating that in or around March 28, 2011, Louis-Jeune “claimed he had bed bugs in his apartment” and a work order was forwarded to the attention of Esquire. Forlenza states that he “went to the apartment on April 1, 2011 and “treated the apartment to ensure that there were no bed bugs and/or the problem would be eradicated.” He further states: “A month later I was advised that the Tenant in Apt. 2F still complained of bedbugs. I went back to Apt 2S [sic] on May 12, 2011, and the Tenant was not home, however, as per the attached Service Report, I placed bait stations for mice. No sign of bedbugs were present.” The record includes an invoice from Esquire for the following services performed at the building on May 12, 2011: “Bedbug Insection [sic] Performed For Apt 2A”; “Pest Management Services Rendered For General Pest Control”; and” Placed 8 Bait Stations for Mice for Apt. #2F.”

On May 16, 2011, Louis-Jeune sent Harris a letter and/or email advising that he had arranged for Terminix to inspect his apartment “this past Tuesday after finding another bed bug in the seating area of the apartment,” and “[a]fter performing a thorough examination of each room and closet, the Terminix inspector provided an evaluation of what needed to be done to permanently rid the apartment of the bedbugs and any eggs that may have already been laid.” Louis-Jeune detailed Terminix’s recommended “steps” and noted that the “inspector was quite appalled after learning about the steps that have been taken thus far,” explaining that a “fogger does nothing to the bed bugs.” Louis-Jeune also advised that Tony from Esquire “was scheduled to show up Thursday to check the monitors he’d set up Thursday the week prior and instead we learned he showed up unannounced on Friday when no one was at the apartment.” He concluded by stating, “Please let me know what you can do about taking these steps to rid us of the problem once and for all.” Harris responded the same day, as follows: “I wanted to confirm receipt of your letter. I forwarded it to Tony at Esquire Exterminating Services, He will contact you for another appointment if you elect to have one. We are quite comfortable with his service and the success he has had handling our properties with bed bugs. I am reluctant to take the advice of yet another company as to how to handle this as Tony has been 100% spot on since the City had the bed bug outbreak. So, please schedule with him and he’ll take care of the problem.”

The subsequent developments:

It is unclear what happened next, if anything, but on May 31, 2011, Saundra Raymond wrote a letter to the managing agent, Sassouni Management, advising that she and Louis-Jeune were vacating the apartment as of that day, as “the apartment is uninhabitable in its present condition, namely, the bedbug infestation.”

In June 2011, the landlord commenced the instant action in Civil Court against Louis Jeune and Raymond, seeking unpaid rent, broker’s fees and attorney’s fees…Louis-Jeune and Raymond answered asserting affirmative defenses of payment, the apartment has been re-rented, breach of warranty of habitability and constructive eviction, and counterclaims for breach of warranty of habitability, rent abatement, quantum meruit (reimbursement for moving expenses and supplies for treating bedbug condition), unjust enrichment (return of $1,500 security deposit), and attorney’s fees.

The prior decisions:

[T]he landlord and managing agent moved for summary judgment dismissing the tenants’ complaint. On July 9, 2014, Justice Tingling issued an order granting the motion to the extent of dismissing ‘‘the minor plaintiffs claims” and “the personal injury causes of action,” but denied dismissal of the property damage claims, finding that the tenants’ opposition raises “triable issues of fact in dispute concerning property damage/loss.”

[L]ouis-Jeune moved for partial summary judgment on his negligence claim for property damages, and the landlord and managing agent cross-moved for summary judgment dismissing the property damage claims.  By a decision and order dated July 17, 2015, this Court denied the motion and cross-motion, determining that Louis-Jeune failed to submit competent evidence that the owner or managing agent caused or created, or had actual or constructive notice of the bed bug condition in his apartment. This Court also found that the owner and managing agent failed to make a prima facie showing that they properly maintained and provided adequate extermination services for the apartment, and that receipts were not required for Louis-Jeune to establish his damages claim for personal property. However, at oral argument on the instant motion and cross-motion, the parties agreed to settle Louis-Jeune’s property damage claims for $7,500.

The grounds for the pending motion:

[L]ouis-Jeune is now moving to dismiss the landlord’s complaint in its entirety and for partial summary judgment in his favor. According to his attorney’s Affirmation in Support, his motion for partial summary judgment against the landlord, is limited to two specific grounds: his counterclaim for breach of warranty of habitability under RPL §235-b, and a new theory of liability based on “anticipatory repudiation of the lease agreement,” which is not among the defenses or counterclaims pleaded in his answer. Contrary to the landlord’s assertions, the issue of constructive eviction is not before the Court at this time, as Louis-Jeune is not seeking partial summary judgment on his constructive eviction affirmative defense or counterclaim, and landlord is not cross-moving for any relief with respect that defense or counterclaim.

Concluding that:

Louis-Jeune has made a sufficient prima facie showing as to liability on his counterclaim for breach of the warranty of habitability. Many courts have held that the presence of bed bugs in an apartment constitutes a breach of the warranty of habitability pursuant to Real Property Law §235-b…The measure of damages for breach of the warranty of habitability is limited to a rent abatement, which is based on the difference between the rent reserved in the lease and the fair market rent value during the period of the breach.  “Loss or diminution in value of personal property as well as personal injuries and pain and suffering are not recoverable[.]

Here, the undisputed record establishes that beg bugs were present in Louis-Jeune’s apartment, and based on the authorities cited above the presence of bed bugs constitutes a breach of the warranty of habitability. As explained above, at his deposition and in his affidavit, Louis-Jeune stated that he was first bitten in February 2011 and saw the first bed bug “on the bed” in March 2011, when he contacted the managing agent, who sent a work order to the exterminator identifying the “problem” as “Bed-Bugs.” On April 1, 2011, the exterminator treated the apartment for bedbugs, which according to Louis-Jeune consisted of setting off foggers in the living and bed rooms, and placing a “powered substance” on the bed frame. Louis-Jeune testified that the bed bug [problem] subsequently worsened, as he had itching and “swelling welts,” and observed bed bugs throughout the apartment, including his son’s bassinet. On May 3, 2011, Louis-Jeune emailed the managing agent that he had discovered more bed bugs in the apartment that night and included photographs of his wife’s face “after have been bitten repeatedly.” Although the managing agent immediately faxed a work order to the exterminator advising that the tenants “still have” bed bugs and “want out of lease,” and “Please arrange ASAP,” the exterminator did not treat the apartment for bed bugs when he went back to the apartment on May 12, 2011.

Rejecting landlord’s submission:

In opposition, the landlord fails to submit sufficient competent proof to raise an issue of fact as to the presence of bed bugs in the apartment. The exterminator’s bare and conclusory affidavit is carefully drafted to avoid the issue. The exterminator fails to state specifically whether he inspected the apartment on April 1, 2011 and observed any bed bugs or evidence of bed bugs in the apartment, when, in response to the tenants’ complaints of bedbugs, he came to the apartment for the sole reason of treating the bed bug condition. At that time, he clearly had an opportunity to inspect the apartment for bed bugs, but his affidavit includes only the vague statement that he “treated the apartment to ensure that there were no bed bugs and/or the problem would be eradicated.” Although the exterminator returned to the apartment on May 12, 2011 in response to the tenants’ continuing complaints of bed bugs, the exterminator acknowledges that the tenants were not at home, and states without explanation or supporting facts that “[n]o sign of bed bugs were [sic] present.” Moreover, while the exterminator’s invoice for the services provided on May 12, 2011, lists a charge for a “bed bugs inspection” of another apartment, Apt. 2A, it does not include a charge for a bed bug inspection of Louis-Jeune’s apartment, Apt. 2F. The only charge for Apt. 2F is for mice bait. Under these circumstances, the exterminator’s bare and conclusory affidavit is insufficient to raise an issue of fact as to whether bed bugs were present in the apartment.

And finding as to damages that:

Finally, the branch of the motion to dismiss the landlord’s complaint in its entirety is denied, as Louis-Jeune has failed to provide a factual or legal basis for dismissing the landlord’s claim for rent in its entirety, as a matter of law. Although Louis-Jeune has sufficiently established that the landlord breached the warranty of habitability based on the presence of bed bugs in his apartment, and given such breach, Louis-Jeune is entitled to a rent abatement, the determination as to the amount of such abatement is a factual issue…Once a breach of warranty is established, 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[.]”

Aponte v. New York City Hous. Auth., 2016 NY Slip Op 26334 (Sup. Ct., Richmond Co., Straniere, J., October 13, 2016)

The Court outlined the facts:

Plaintiffs, five members of the Aponte family, commenced this action in Supreme Court, Richmond County against the defendant, New York City Housing Authority (NYCHA), alleging that owing to the negligence of the defendant, plaintiffs’ apartment at the Mariner’s Harbor Houses, Staten Island, New York has never been eradicated of a bedbug infestation condition. Plaintiffs’ assert that the condition began in 2012 and continues to date. Defendant NYCHA has admitted the apartment has had bedbugs on and off over a period of time, but denies any liability. A jury trial commenced on September 15, 2016 and continued to verdict in favor of plaintiffs on September 23, 2016.

The warranty of liability:

[R]eal Property Law Section 235-b creates a warranty of habitability in regard to landlord-tenant relationships. It provides:

Warranty of Habitability

  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 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.

The case law with respect to the Housing Authority:

Case law has established that NYCHA is subject to the warranty of habitability of RPL §235-b …Plaintiffs allege that defendant NYCHA has breached this warranty of habitability by failing to eradicate the bedbug condition in Apartment 1C. Defendant alleges that there was no breach of the warranty of habitability either because it took all reasonable steps to eradicate the bedbug infestation or that the condition was caused by one or more of the plaintiffs.

The threshold determination:

The presence of bedbugs in an apartment has been held to constitute a breach of the warranty of habitability…Although standing alone, a violation of RPL §235-b may not give rise to a damage claim for personal injuries resulting from the infestation…there are other statutes that do create such a cause of action.

Section 80 of the Multiple Dwelling Law:

Cleanliness

  1. The owner shall keep all and every part of a multiple dwelling, the lot on which it is situated, and the roofs, yards, courts, passages, areas or alleys appurtenant thereto, clean and free from vermin, dirt, filth, garbage or other thing or matter dangerous to life or health .
  2. Any tenant shall be punishable as provided in section three hundred four for the existence of conditions in violation of the provisions of this chapter within his apartment to the extent that such conditions are caused by him, by members of his family or by his guests, and under his control; but this provision shall not be construed to relieve the owner of any liability or duty under this section, except where a violation is caused and continued solely by the tenant and those under his control.

Plaintiffs’ evidence:

Plaintiffs allege that NYCHA has violated this statute by failing to keep every part of the multiple dwelling free from vermin, in this case bedbugs. Only in cases where the problem is caused solely by the tenant is the landlord relieved of its obligations under this statute. Defendant NYCHA alleges the condition in the apartment was caused by the plaintiffs. There is no record of the plaintiffs having been charged with a violation of this section by NYCHA or that NYCHA took any steps to punish the plaintiffs for violating MDL section 80 by invoking the procedures of Multiple Dwelling Law Section 304. Therefore, it must be concluded that the conditions observed by NYCHA employees when they visited plaintiffs’ apartment to treat bedbugs were not of the nature [of] or did not reach the level to constitute a violation under section 304. There is no indication that NYCHA ever undertook to terminate plaintiffs’ tenancy for violating the lease terms or for creating a nuisance.

There is evidence from witnesses from both parties that establish that the premises 179 Brabant Street, has not been kept clean and free of vermin as required by this statute and responsibility for cleanliness rests with NYCHA. The case law has consistently held that administrative code provisions imposing a nondelegable duty on a landlord to maintain the premises in a safe condition are valid and consistent with the obligations created by this statute[.]

The relevant provisions of the Housing Maintenance Code:

Section 27-2017 sets forth certain definitions to apply to analyzing the alleged occurrences. It provides:

Definitions

When used in this article:

(a) Eradication means the elimination of rodents or insects and other pests from any premises through the use of traps, poisons, fumigation or any other method of extermination.

(b) Insects and other pests include the members of class insecta including bedbugs,

(c) Harborage means any condition which provides shelter or protection for rodents or insects and other pests.

[New York City Administrative Code] Section 27-2018 provides:

Rodent and insect eradication; mandatory extermination.

  1. The owner or occupant in control of a dwelling shall keep the premises free from rodents, and from infestation of insects and other pests, and from any condition conducive to rodent or insect and other pest life.
  2. When any premises are subject to infestation by rodents or insects and other pests, the owner or occupant in control shall apply continuous eradication measures.
  3. When the department makes the determination that any premises are infested by rodents, insects or other pests, it may order such eradication measures as the department deems necessary.

The arguments as to the applicability of the Housing Maintenance Code:

Plaintiffs allege that the defendant as the “owner” of the premises was required to eradicate the bedbug infestation. Defendant alleges that plaintiffs are the “occupants in control” of the premises and have an equal obligation to keep the premises free from infestation and to eradicate the bedbug condition. However, the housing maintenance regulations and the notice to tenants prepared by NYCHA for tenants concerning bedbug infestation…negate any implication that the plaintiffs are responsible for eradicating the bedbug condition in their apartment. NYCHA’s notice, which is given to any tenant who requests having an apartment treated for bedbugs, prohibits the tenant from undertaking the eradication of bedbugs. It specifically states that NYCHA or a NYCHA approved contractor is responsible to eradicate bedbugs. This makes complete sense because no one would want a tenant to undertake eradication of bedbugs on the tenant’s own. This could create a hazardous condition and threaten the safety of other occupants of the building.

Concluding that:

Any argument that this section of the HMC is not applicable to NYCHA, is baseless. Throughout Article 2 of [the Administrative Code] when the legislature has wanted to exclude NYCHA from coverage, it has specifically done so.  [The relevant sections] all provide for exclusions from code provisions. No similar language is provided in Article 4. Therefore, the statute is applicable and NYCHA as the landlord is required to eliminate the bedbugs.

Neither side has placed into evidence the rental agreement between the parties. If the lease shifted responsibility to the plaintiffs, then presumably defendant would have produced that document. Because defendant has not submitted the lease, then it must be concluded the statutory language controls. This makes it mandatory for the owner, NYCHA, to eradicate bedbugs. Whether a landlord could negate by contract this statutory mandate is questionable. Therefore, defendant NYCHA has the sole responsibility for eradication of bedbugs under this regulation. The credible evidence is that eradication of the bedbugs has not been successful in spite of the efforts of the defendant.

*     *     *

The credible evidence is that bedbugs have existed in plaintiffs’ apartment since 2012 and that the infestation continues until today. Even though a private landlord would be subject to a penalty for failing to eradicate the bedbugs, historically, HPD will not write a violation for NYCHA properties. Although a notice is given to NYCHA, no penalty attaches. This is apparently authorized by New York City Civil Court Act §110(c). Why this is permitted is an issue for another day in another court. Are not all tenants entitled to the same health and safety protections? And should not all landlords have to pay a penalty for violating the law? Maybe if NYCHA site managers were held accountable to the same degree as private property managers the situation would improve.

Plaintiffs’ motion for a directed verdict on the issue of the liability of defendant for failing to eradicate the bedbug infestation is granted. The statutes make eradication of bedbugs in a tenant’s apartment the obligation of the landlord, defendant NYCHA. It is mandatory and cannot be waived. NYCHA, in spite of its efforts, failed to eradicate the bedbugs.

A question of fact exists as to whether the actions of the plaintiffs made it impossible for the defendant to eradicate the bedbugs. It is a jury question as to the comparative negligence of the plaintiffs in that regard. It is also a jury question as to whether the plaintiffs have suffered any damages.

People v. LMA Assoc. LLC, 2016 NY Slip Op 26393 (City Court of Mount Vernon, November 30, 2016)

City Court outlined the facts:

Owner LMA Associates has been charged with violating International Property Maintenance Code sections 309.1 and 309.2…Tenant Faith Topey has been charged with violating International Property Maintenance Code sections(A) 101.3, 301.2 and 309.5…The complaints against both arise out of the same set of circumstances. The complaints charge that on September 16, 2016 Building Inspector Linda Baker, of the Mount Vernon Department of Buildings found the presence of bed bugs in unit 324 East 4th Street aka 25 Millington Street #C10, owned by LMA Associates and occupied by tenant Faith Topey. Suburban Pest Control verified Inspector Baker’s findings. On October 12, 2016, the owner received written notice of the violation. The tenant received notice of her violation on October 17, 2016. A re-inspection of the premises by the Building Department on November 1, 2016 revealed that the bed bug infestation still remained from the first date of inspection on September 16, 2016. Both the owner and tenant were issued appearance ticket violations on November 1, 2016.

2015 International Property Maintenance Code provides in pertinent part:

  • [A] 101.3 Intent This code shall be constructed to secure its expressed intent, which is to ensure public health, safety and welfare insofar as they are affected by the continued occupancy and maintenance of structures and premises. Existing structures and premises that do not comply with these provisions shall be altered or repaired to provide a minimum level of health and safety as required herein.
  • 301.2 Responsibility The owner of the premises shall maintain the structures and exterior property in compliance with these requirements, except as otherwise provided for in this code. A person shall not occupy as owner-occupant or permit another person to occupy premises that are not in a sanitary and safe condition and that do not comply with the requirements of this chapter. Occupants of a dwelling unit, rooming unit and housekeeping unit are responsible for keeping in a clean, sanitary and safe condition that part of the dwelling unit, rooming unit and housekeeping unit or premises which they occupy and control.
  • 309.1 Infestation Structures shall be kept free from insect and rodent infestation. Structures in which insects or rodents are found shall be promptly exterminated by approved processes that will not be injurious to human health. After pest elimination, proper precautions shall be taken to prevent re-infestation.
  • 309.9 Owner The owner of any structure shall be responsible for extermination with[in] the structure prior to renting or leasing the structure.
  • 309.5 Occupant The occupant of any structure shall be responsible for the continued rodent and pest free condition of the structure.

The testimony at trial:

[T]he owner testified they are willing to resolve the issue, however, the tenant has been refusing to allow the exterminator access to the apartment. The owner testified that they are willing to pay for a qualified exterminator to use an insecticide to treat the bed bug problem. They stated that a qualified exterminator, Suburban Pest Control would do two treatments, two weeks apart at a cost of $775.00.

The tenant testified that she has cancer and cannot do the physical work to prepare the apartment for the treatment, including moving furniture and bagging items. She also testified that she cannot be exposed to the chemicals that will be used by the exterminator recommended by the landlord. The tenant provided a letter from her doctor which states, “Due to her medical conditions and medication, it is not recommended that she be exposed to toxins/chemicals. Therefore it is recommended that a non-toxic (non-chemical) form of treatment be used to rid her home of bedbugs.” The tenant insists that the exterminator use a heat method to cure the bed bug infestation. She maintains that by using the heat method, she would not have to bag her clothes and it would not be hazardous to her health. The cost for the heat method would range from $2,600 to $3,000.

The competing arguments:

The owner argues that they are willing and ready to help the tenant resolve the bed bug infestation problem in her apartment, however, they are not obligated to treat the apartment by the using the heat method the tenant is insisting upon. The landlord argues that the tenant should have to pay the price differential between the cost to exterminate with an insecticide and the cost to exterminate via the heat method. The tenant is unwilling/unable to pay for the extermination fees. The Court also asked the tenant if she would agree to the insecticide extermination if the Court could find a way to have her belongings packed and moved for the exterminator; the tenant informed the Court that she did not want anyone to move or pack her belongings. She insists that the heat method be used.

Concluding that:

This case appears to be one of a first impression. The Court found no case law directly on point relating to a dispute about the method of extermination used by a landlord or tenant to remedy an infestation code violation. The International Property Maintenance Code states in pertinent part that “if infestation is caused by failure of an occupant to prevent such infestation in the area occupied, the occupant and owner shall be responsible for pest elimination”…There was no testimony by either party regarding the cause of the bed bug problem. Thus the Court will hold them both responsible for the problem.

The court looked to the Real Property Law for guidance on this issue and also found no case law directly on point. Even so, the Court of Appeals has held that the legislative intent of the warranty of habitability law was to create “an objective uniform standard for essential functions” rather than “an individualized subjective standard…”…It must be noted that ‘the warranty is not intended to make the landlord a guarantor of every amenity customarily rendered in the landlord-tenant relationship, but only to provide protection against those conditions that materially affect the health and safety of the tenants or those deficiencies that in the eyes of a reasonable person deprive the tenant of those essential functions which a residence is expected to provide”…[The Code] provides that “[m]ethods used for exterminating insects…shall conform to generally accepted practice.” The Court finds that use of insecticide is a generally accepted practice to treat the bed bug problem in the tenant’s apartment. The Court fully recognizes and is sympathetic to the tenant’s health condition, however, the law does not require the owner to treat the bed bugs with the more expensive heat method requested by the tenant. Further the fact that the tenant suffers from cancer does not automatically mean she is “disabled” mandating any further accommodation by the landlord…If the tenant wants to use the heat method, she must pay the cost differential. The City of Mount Vernon Building Department simply wants the unit treated and takes no position on the method used to treat the infestation problem.

And ordering that:

It is hereby ORDERED that the tenant grant access to the owner and/or exterminator to the apartment on Wednesday December 7, 2016 between the hours of 9:00am and 4:00pm for the purposes of conducting the first extermination of the tenant’s apartment. The tenant shall make the appropriate arrangements to prepare the apartment and herself for the extermination. The tenant shall also grant the owner and/or exterminator access to the premises for follow up treatments as deemed necessary to eliminate the bed bug infestation in the premises. The owner is to report to the Court the progress the treatment by December 9, 2016 at 4:00pm. After completion of the extermination services and the infestation is deemed remedied by the Department of Buildings, all violations will be deemed dismissed.

JWD & Sons, Ltd. V. Alexander, 33 Misc.3d 1217(A) [Justice Ct. Town of Ossining, September 28, 2011]

The Court described the questions presented:

The issues presented by this case are whether a bedbug infestation in leased residential premises can be the basis of a breach of the implied warranty of habitability and, if it is, whether a tenant is entitled to an abatement of rent paid by a government agency.

The prior proceedings:

By notice of petition and verified petition, dated and sworn to on September 8, 2011, the Landlord initiated this summary proceeding to recover possession of real property. The petition alleges that, on or about August 15, 2000, and pursuant to a written agreement, the Landlord leased 14B Hamilton Avenue, Ossining, New York…to the Tenant for a monthly rent of $1,778.00. The Tenant’s lease obligation to pay rent always has been subsidized by the Village of Ossining Housing Choice Voucher Program, commonly known as the Section 8 Program.

The Section 8 Program was part of the Housing and Community Development Act of 1974…Congress intended the Program to provide decent, affordable housing to low-income families. Section 8 provides landlords with rental subsidies for each qualified tenant who occupies an approved housing unit. Units must meet minimal habitability standards and have rent limitations. Families are accepted for the Program on the basis of their income: only a family whose annual income does not exceed 80% of the median income for the area in which the family lives is eligible. As rent, a Section 8 tenant must pay either 30% of the family’s monthly adjusted income or 10% of the family’s gross monthly income, whichever of the two amounts is greater…A U.S. Department of Housing and Urban Development approved Housing Agency, such as Ossining’s Housing Choice Voucher Program, pays the balance of the rent. That way, the family is not forced to choose between food, shelter, and clothing when allocating its limited resources[.]

The petition further alleged that Respondent, still in possession of the Leasehold, did not pay her share of the monthly rent ($249) for May, June, August, and September 2011, totaling arrears of $996.
As relief, the petition seeks a judgment for possession of the Leasehold, a warrant to remove the Tenant therefrom, and a money judgment for rent arrears, with costs, disbursements, and attorneys’ fees.

The tenant’s allegation at the hearing:

At the initial hearing on the petition, the Tenant appeared pro se and verbally alleged, in substance, that she is entitled to an abatement of her rent for the period of time that she resided in the Leasehold when it was infected by bedbugs. The Court understood that affirmative defense to allege that the bedbug infestation was a breach by the Landlord of the statutory implied warranty of habitability.

The applicable law:

In every written or oral lease or rental agreement for residential premises, a landlord or lessor shall be deemed to covenant and warrant that the leased or rented premises, and all common areas, are fit for human habitation, are fit 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[.].

The landlord’s obligation under the warranty of habitability:

[Under] the warranty of habitability: (1) the landlord is responsible for maintaining the leased premises in decent condition even if the problems are not caused by its negligence; (2) the tenant’s obligation to pay the agreed rent is conditioned upon the landlord’s keeping the premises habitable; (3) the tenant does not have to move out in order to claim that the warranty has been breached; (4) the standard for determining whether the leased premises are habitable is the expectations of a reasonable person; (5) that damages are not susceptible to precise determination does not insulate the landlord from liability; and (6) expert testimony is not required.
The testimony and evidence at trial:

As an important preliminary matter, the Landlord proved by a preponderance of the evidence all the required factual elements of the amended petition in order to obtain the relief sought. In particular, the Tenant acknowledged having received personally the Landlord’s five-day notice terminating her tenancy…which is dated and which was served on September 2, 2011. In fact, the Tenant testified that she paid $500 to the Landlord as rent the day after she received the five-day notice.

In defense, the Tenant testified and argued, in substance, that she is entitled to an abatement of her rent because the Landlord had breached the implied covenant of habitability in her lease due to the bedbug condition of the Leasehold. The Tenant testified in graphic detail concerning how that condition made her home a wretched place to live for her family and her. The Landlord offered no testimony or evidence disputing the existence and extent of the bedbug infestation. In fact, Ossining’s Section 8 Program corroborated the Tenant’s testimony concerning the bedbug infestation. On July 22, 2010, a Section 8 Program inspection reported that the Leasehold was not in compliance with federal housing quality standards, in part, because of bedbugs[.]
The applicable law:

A bedbug infestation can be a breach of the implied warranty of habitability…”Recent cases have held that bedbug infestation can constitute a breach of the implied warranty of habitability.”…”Court have consistently found a breach of the warranty of habitability and awarded an abatement where an apartment is infested with bedbugs.”…Here, the Court finds that the Tenant has proven by a preponderance of the evidence that the bedbug infestation of the Leasehold was such a breach.

Concluding that:

During the trial, the Tenant presented no testimonial or documentary evidence as to when the bedbug infestation began. In the absence of such evidence, the Court is compelled to find that the bedbug infestation began on or about July 22, 2010, the date that the Section 8 Program inspected the Leasehold and discovered the infestation…Thereafter, the parties agree that the Landlord’s efforts to exterminate the bedbugs began on or about August 20, 2010…The parties disagree, however, as to when the extermination was completed: the Landlord testified that it was completed within a week; the Tenant testified that it took at least two months to complete.

By crediting the Tenant’s testimony that the bedbug extermination took at least two month to complete or October 20, 2010, that means that the duration of infestation was 81 days. According to the Tenant, she seeks an abatement of all or some percentage of her share of the rent paid to the Landlord for that 81-day period and to have that abated amount applied as a credit against the rent arrears of $496.

In determining the amount of the abatement, the court may consider the severity of the adverse conditions of premises, the period of time during which those conditions existed, and their impact on the tenant’s living habits as well as the effectiveness of the landlord’s attempt to remedy them[.]

*     *     *

Here, based on the credible evidence received at the trial, the Court concludes that the Tenant is entitled to a rent abatement of 50% of her share of the rent she actually paid during the 81-day period from July 22, 2010 to October 20, 2010. Because the parties agree that, from August 2010 to April 2011, the Westchester County Department of Social Services, on the Tenant’s behalf, paid her share of the rent ($249 per month), with the Tenant paying no rent during that time period, the Tenant’s rent abatement is limited to 50% of the rent she actually paid for the 9-day period from July 22, 2010 to July 31, 2010 or $37.35.

Accordingly, it is the decision of the court that the Landlord is entitled to a judgment for possession of the Leasehold based on non-payment of rent, a warrant to remove the Tenant therefrom, and a money judgment for $458.65 for rent arrears, with costs and disbursements pursuant to the Justice Court Act.

Lessons learned:

Even in situations, such as bed bug infestations – where there is no dispute that mitigation and remediation are required – “finger-pointing” and litigation often ensue in a tangled web of legal issues.