Landlord v. Tenant: April 2017

EXTERMINATION OF PESTS

Landlord Can Return to Court If Bedbug Treatment Tenant Requested Doesn’t Work

Landlord sued to evict tenant for unreasonably refusing access to the apartment in order to exterminate and remove bedbugs. Landlord’s termination notice stated that, although tenant claimed that she couldn’t accept the bedbug treatment for medical reasons, tenant also refused alternative treatments. Landlord and tenant, by their attorneys, signed a series of settlement agreements in court by which tenant was required to provide access on certain dates for extermination by steam service and cryonite, and landlord was to pay for storage and cleaning of tenant’s belongings.

Tenant later sued landlord in federal court, claiming that landlord was violating her rights under the Fair Housing Act and the Americans with Disabilities Act. She claimed that her unique health situation required reasonable accommodation when exterminating, as any use of chemicals would have a negative impact. The federal court denied tenant’s request to stay the housing court proceeding and asked the housing court to review questions. Later, after a hearing, the housing court answered the federal court questions, finding that tenant had a medical condition that was a disability and was entitled to a reasonable accommodation, that landlord had reasonably accommodated tenant, and that it was unclear whether nonchemical bedbug treatment would cure the condition.

The housing court further ruled that: (a) tenant must provide access for extermination within 30 days and follow-up; (b) tenant must provide access and properly prepare the apartment for extermination; (c) the extermination must be done using any nonchemical method, including cryonite or steam and freeze, that landlord’s contractor deems most effective; and (d) if the nonchemical treatment doesn’t work, landlord can go back to court to seek further appropriate relief while relocating tenant and her family during chemical treatment.

• 2 Perlman Drive, LLC v. Stevens: 54 Misc.3d 1215(A), 2017 NY Slip Op 50173(U) (Civ. Ct. Kings; 2/9/17)

LANDLORD’S NEGLIGENCE

Landlord Not Responsible for Tenant’s Burn Injury

Tenant sued landlord for negligence after she suffered a burn injury to her head when she used a match to try to light a burner on the top of her gas stove because the stove’s igniter didn’t work. The court denied landlord’s request to dismiss the case without a trial. Landlord appealed and won. Tenant herself had bought the stove and had it installed. Tenant’s lease required landlord to repair and maintain any appliance provided by landlord but imposed no duty on landlord to repair or maintain appliances supplied by tenant herself. So landlord wasn’t liable for tenant’s injuries. Tenant also claimed that the accident was related to a condition created by landlord in the course of a gas pipe replacement project in the building. But landlord showed that the project was performed by a licensed contractor in accordance with permits, and was inspected and certified as safe when completed two years before the accident. The project didn’t involve any work on tenant’s stove, except to assure that there was gas service to the stove and that it was safe with no leaks when the project was done.

• Kaplan v. Tai Properties, LLC: 45 N.Y.S.3d 792, 2017 NY Slip Op 00729 (App. Div. 1 Dept.; 2/2/17)

LEAD PAINT

Child’s Cognitive Impairment Wasn’t Caused by Lead Paint Exposure

Tenant sued landlord, claiming that her child developed cognitive deficits due to exposure to lead-based paint in tenant’s apartment. Landlord asked the court to dismiss the case without a trial. The court ruled against landlord, who appealed and won. The appeals court found that exposure to lead didn’t cause the child’s cognitive deficits, and that the reports of two doctors were insufficient to raise issues of fact requiring a trial. The child had undisputed speech and language deficits from infancy, well before his first known exposure to lead paint. The child received speech and language therapy and individualized education programs into high school and an expert pediatric neurologist’s report showed that no peer-reviewed study had found that lead contributed to conditions in children with pre-existing cognitive deficits. A neuropsychologist’s report submitted by tenant also was insufficient to raise any questions as to whether the child’s exposure to lead created greater difficulties for him than he would have had if he hadn’t been exposed to lead.

• Adrian T. v. Millshan Realty Co., LLC: 2017 NY Slip Op 01122, 2017 WL 536018 (App. Div. 1 Dept.; 2/10/17)

MAJOR CAPITAL IMPROVEMENTS

Rent Hike for Bathroom Modernization Granted Even Though Tenants Denied Access

The DRA granted landlord’s MCI rent increase application based on bathroom modernization. Tenant appealed and lost. Tenant claimed that the bathroom modernization wasn’t performed in her apartment. She said that since the bathroom and plumbing in her apartment were in good condition, landlord agreed not to replace them and made tenant sign a document declining the work. Landlord pointed out that tenant denied access for the bathroom replacement and that it remained ready to replace tenant’s bathroom as soon as access was provided. The DHCR noted that tenant responded to the MCI application, admitting that she declined the bathroom modernization. This didn’t exempt her from the MCI rent hike and tenant should provide access for landlord to complete the work. Tenant also claimed that the bathroom had been modernized 10 years before the MCI was performed, but there was no prior MCI application filed for any bathroom work. Tenant also claimed that the bathroom modernization was an individual apartment improvement. But it was the DHCR’s established position that this work was an MCI. The fact that three of the building’s 17 rent-stabilized tenants denied access for the work wasn’t grounds to deny the MCI rent hike.

• Heredia: DHCR Adm. Rev. Docket No. DP430034RT (1/31/17)

PASSING ON APARTMENTS

Friend Who Moved Back in with Tenant Didn’t Prove Succession Rights

Landlord sued to evict apartment occupant after rent-stabilized tenant died. Occupant claimed that she was a nontraditional family member who had succession rights. The trial court ruled for landlord. Occupant appealed and lost. Although tenant and occupant may have lived together in a close relationship at one time, they had separated in 1988 and occupant lived elsewhere for 15 years. She moved back into the apartment in 2003 because she was facing eviction from her Queens apartment, but there was no evidence that she then lived with tenant in a relationship that had “emotional and financial commitment and interdependence.” No friends, neighbors, or family members testified on occupant’s behalf, and there was no documentary or other credible proof that occupant and tenant intermingled finances, had jointly owned property, or formalized any legal obligations. Evidence showed only that tenant and occupant were friends, roommates, and business colleagues. One of the appellate judges disagreed, finding that the 30-year relationship between tenant and occupant involved typical day-to-day family chores and responsibilities uncharacteristic of a mere friendship.

• 530 Second Ave. Co., LLC v. Zenker: 54 Misc.3d 144(A), 2017 N.Y. Slip Op. 50232(U) (App. T. 1 Dept.; 2/22/17)