In 501 N.Y. LLC v. Anekwe, 501 commenced a nonpayment proceeding against its tenant, Nkiru Anekwe, seeking to recover rent for the period January 2004 through May 2005. Ms. Anekwe countered that she was entitled to a rent reduction or "abatement" predicated upon the landlord's breach of the warranty of habitability -- a state law which seeks to ensure that residential units are free of "dangerous, hazardous or detrimental" conditions that may pose a threat to the occupants' "life, health or safety."*
In this particular instance, Ms. Anekwe alleged a series of violations, the most significant of which was a "roach infestation."** According to the decision, the tenant's "lower kitchen cabinets" had been removed by the landlord's exterminator, and the area sprayed, but that effort did little to abate the underlying condition. As a result, the tenant was reportedly unable to cook in her kitchen and was forced to keep all her food "in the living room in cartons."
After trial, the Housing Part of the Kings County Civil Court awarded the tenant a 5% abatement finding, in part, that the tenant had failed to afford the landlord adequate notice of the conditions and denied the owner access to the apartment to effect the needed repairs. On appeal, the Appellate Term, Second and Eleventh Judicial Districts, disagreed and noted, in part, as follows:
Contrary to the findings of the lower court ... the record establishes that landlord was fully aware of the severe vermin infestation in tenant's apartment and that its efforts to correct the condition, such as by providing tenant with ant spray, were ineffectual. In fact, a class "B" violation had been placed on the premises in March 2002 for the vermin infestation, and another such violation was placed in 2005. Moreover, in a prior nonpayment proceeding between the parties two years before the instant proceeding, tenant was awarded approximately a 30% abatement for the conditions in the apartment, including the vermin infestation.
In view of the severity and duration of the conditions, the landlord's knowledge of their existence and ineffectiveness in correcting them, the appellate court upped the abatement to 40% of the rent sought.***
While 40% may seem to be a substantial victory to some, the AT's decision advises that the tenant has been living with an infestation "since 2001." In view of that fact, and the landlord's apparent recalcitrance, wouldn't a higher rent abatement have been in order?****
For a copy of the Appellate Term's decision in 501 N.Y. LLC v. Anekwe, please click the following link: http://www.nycourts.gov/reporter/3dseries/2006/2006_52513.htm
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*Real Property Law section 235-b
**Ms. Anekwe also allegedly suffered from insufficient heat, cracked wall tiles, inadequate water pressure (bath) and leaky plumbing.
***The AT also did not believe that the record supported the landlord's claim that the tenant had impeded the repair effort by refusing to grant access to her unit.
****The tenant's rent was adjusted by some $3,000. (Contestants on NBC's hit show Fear Factor are compensated a whole lot more! If you happen to be unfamiliar with the show, check out this this link: http://video.nbc.com/player.html?dlid=23053 )