According to RPL 235-B Warranty of habitability:

“3. In determining the amount of damages sustained by a tenant as a result of a breach of the warranty set forth in the section, the court;

(a) need not require any expert testimony; and

(b) shall, to the extent the warranty is breached or cannot be cured by reason of a strike or other labor dispute which is not caused primarily by the individual landlord or lessor and such damages are attributable to such strike, exclude recovery to such extent, except to the extent of the net savings, if any, to the landlord or lessor by reason of such strike or labor dispute allocable to the tenant’s premises, provided, however, that the landlord or lesser has made a good faith attempt, where practicable, to cure the breach.

(c) where the premises is subject to regulation pursuant to the local emergency housing rent control law, the emergency tenant protection act of nineteen seventy-four, the rent stabilization law of nineteen hundred sixty-nine or the city rent and rehabilitation law, reduce the amount awarded hereunder by the total amount of any rent reduction ordered by the state division of housing and community renewal pursuant to such laws or act, awarded to the tenant, from the effective date of such rent reduction order, that relates to one or more matters for which relief is awarded hereunder.”

And according to the court, consequential damages are not recoverable, only a rent abatement.

Salgado v Cambridge Manor Apts II, Inc., 2020 NY Slip Op 50613(U), Decided on April 24, 2020, City Court Of Middletown, Orange County, Guertin, J:

“INTRODUCTION

This is a Small Claims action by Nicholas Salgado and Nicole Mnich (collectively, “the Claimants;” Nicholas Salgado is referred to as “Salgado,” and Nicole Mnich is referred to as “Mnich”) against Cambridge Manor Apts II, Inc. (“the Defendant”) in which the Claimants are seeking from the Defendant the sum of $5,000.00 for damages to a sectional sofa, ottoman, child’s toys, fish tank, and other furniture owned by the Claimants and used by them at their apartment known as Apt. 814, 38 Stoneridge Road, Middletown, New York 10941 (the Property”).

The Claimants submitted their Application to File Small Claims on December 10, 2019. Trial was originally scheduled for February 7, 2020 but was adjourned at the Defendant’s request to February 21, 2020. On February 21, 2020, Mnich appeared pro se and Fiona A. Foley, Esq. appeared on behalf of the Defendant, and the matter was further adjourned to March 6, 2020 at Mnich’s request. The parties appeared in court on March 6, 202 for the trial; the Claimants appeared pro se, and the Defendant appeared by Fiona A. Foley, Esq. and Kathleen Sullivan (“Sullivan”), the Defendant’s office manager. Salgado, Mnich, and Sullivan all testified under oath, and all three testified credibly. 

Each party also submitted documentary evidence for the Court’s consideration. After trial, the Court reserved decision.

FINDINGS OF FACT The credible evidence at the trial showed the following:

In April 2018, the Claimants moved into the Property. Salgado signed a lease with the [*2]Defendant with an initial lease term from April 13, 2018 to March 31, 2019; the lease and the term was extended by a Lease Renewal Agreement to March 31, 2020 (the original lease and the Lease Renewal Agreement together are referred to as “the Lease”). Although Salgado signed the Lease, Paragraph 3 of the Lease indicated Mnich also would occupy the Property. A copy of the Lease was accepted into evidence as Defendant’s Exhibit A.

Two provisions in the Lease addressed damage to the Claimants’ personal property. Paragraph 5 of the Lease stated the Defendant would insure the apartment complex but also contained this provision: “Please note that your personal property is not insured by us [the Defendant] and you [the Claimants] must obtain renter’s insurance in order to have coverage for your personal property.” Paragraph 10 of the Lease contains a similar provision: “You [the Claimants] are urged to carry renter’s insurance on your personal property as we [the Defendant] cannot and do not insure your personal property against loss.”

The Claimants occupied the Property (apparently) without incident until the morning of July 13, 2019, when Salgado woke up and found roaches on the floor. On July 15, 2019, Salgado called Sullivan about the situation, and Sullivan hired Masters Termite & Pest Control (“the Exterminator”) to exterminate the roaches. The Exterminator came to the Property on July 19, 2019 and treated for roaches, particularly in the kitchen area, as shown by Invoice No.175193 (Claimants’ Exhibit 2, in evidence). The roach condition continued, Salgado called Sullivan again, and the Exterminator came to the Property again on July 26, 2019 and treated for roaches in the interior, living room, and kitchen, as shown by Invoice #A31850 (Claimants’ Exhibit 3, in evidence). The Exterminator also treated the Property on August 20, 2019 and, on that day, examined Apartment 816, which may have been the source of the roaches. On August 23, 2019, the Exterminator treated Apartment 816 for roaches. Claimants’ Exhibit 1, in evidence, contains the Exterminator’s invoices for the treatments at the Property on August 20, 2019 and Apartment 816 on August 23, 2019.

Salgado testified he saw more roaches approximately a month later and called Sullivan to determine if there was another apartment available in the same complex. Sullivan did have one available at the complex, but the per month rental was higher, and there also would have been a $500.00 transfer fee. Salgado decided to remain at the Property but eventually moved out, on December 28, 2019.[FN1]
On cross-examination, Salgado admitted the Defendant was responsive and sent the Exterminator to the Property each time Salgado complained about the roaches. Salgado agreed he did not have to pay for the extermination services, and stated that after his last complaint in or around August or September, 2019, he made no further complaints to the Defendant about the roaches. He acknowledged he did not obtain renter’s insurance (he stated renter’s insurance didn’t cover roach issues) and also acknowledged the Lease stated the Defendant was not responsible for damage to personal property.

Mnich testified that the roach issues required the Claimants to clean various items of property such as the dining room table, chairs, a couch, a television stand, bed drawers, two night [*3]stands, a cat tree, and a desk, and also required them to dispose of various items such as a microwave, coffee maker, air fryer, toaster, blender, dish rack, pots and pans, clothes, their child’s toys, a fish tank stand, an ottoman, and bed sheets/linens (Claimants’ Exhibit 6, in evidence). Accepted into evidence as Claimants’ Exhibit 5 was an invoice dated March 15, 2016 from Bob’s Discount Furniture when Salgado purchased various items of furniture such as a dresser, mirror, chest, night stands, headboard, storage drawers, sofa, chaise, ottoman, table, and stools. Salgado had that furniture put into storage at Prime Storage, Middletown, New York from October 2016 until the Claimants moved into the Property; the storage unit ledger history was accepted into evidence as Claimants’ Exhibit 4, in evidence.

Other than the original purchase price of some furniture items as shown by the invoice dated March 15, 2016 from Bob’s Discount Furniture (Claimants’ Exhibit 5), the Claimants gave no estimates or paid receipts indicating the cost of cleaning the items listed in Claimants’ Exhibit 6 or the value of the items listed in Exhibit 6 that the Claimants asserted they lost due to the roach issues.

DISCUSSION Residential leases in New York are governed by a warranty of habitability; that is (as set forth in NY Real Property Law § 235-b[1]), “[i]n 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 . . . are fit for human habitation and 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 New York Court of Appeals, in Park West Management Corp. v Mitchell (47 NY2d 316, 325 [1979], cert denied 444 US 992 [1979]) analyzed RPL § 235-b as codifying existing case law and recognized that “[a] residential lease is now effectively deemed a sale of shelter and services by the landlord who impliedly warrants: first, that the premises are fit for human habitation; second, that the condition of the premises is in accord with the uses reasonably intended by the parties; and, third, that the tenants are not subjected to any conditions endangering or detrimental to their life, health or safety [footnote omitted]” (47 NY2d at 325). That three-part warranty by the landlord is so important and necessary that “[t]he obligation of the tenant to pay rent is dependent upon the landlord’s satisfactory maintenance of the premises in a habitable condition” (id. at 327).

Although a residential landlord must satisfy the warranty of habitability, “a landlord is not required to ensure that the premises are in perfect or even aesthetically pleasing condition” (id. at 328). A residential landlord, however, warrants “that there are no conditions that materially affect the health and safety of tenants . . . [such as] insect or rodent infestation”; if there are such conditions, “in the eyes of a reasonable person . . . [then], a breach of the implied warrant of habitability has occurred” (id.) (accord Solow v Wellner, 86 NY2d 582, 588 [1995] [in Park West Management Corp. at 327, however, “(w)e specifically rejected the contention that the warranty was intended to make the landlord ‘a guarantor of every amenity customarily rendered in the landlord-tenant relationship’ . . . .”]).

Presence of roaches or other insects in a rental property could be considered a breach of the warranty of habitability (see, e.g., Gawad v Aviad, 37 Misc 3d 126[A], 2012 NY Slip Op 51851[U], *1 [App Term, 2d Dept, 11th & 13th Jud Dists 2012] [bedbugs]; Port Chester [*4]Housing Authority v Mobley, 6 Misc 3d 32, 34 [App Term, 2d Dept, 9th & 10th Jud Dists 2004] [insects and rodents]; Solow v Wellner, 154 Misc 2d 737, 743 [App Term, 1st Dept, 1992], affd as modified 205 AD2d 339 [1st Dept 1994], affd 86 NY2d 582 [1995] [roaches]). A bug infestation of any type would fall under the general classification of “vermin,” which would include not just bugs but mice as well (Ludlow Properties, LLC v Young, 4 Misc 3d 515, 519 [Civ Ct, New York County 2004]). In a residential context, however, not all vermin are alike; “vermin such as mice and roaches which although offensive do not have the effect on one’s life as bedbugs do, feeding upon one’s blood in hoards nightly turning what is supposed to be bed rest or sleep into a hellish experience” (id.). Even if there is an insect infestation, “a landlord must be allowed a reasonable amount of time to correct [such] a condition” (Gawad at *1).

When there is a breach of the warranty of habitability by a residential landlord, the typical remedy is a rent abatement (Park West Management Corp. at 329). The amount of a rent abatement, if any, is determined by weighing “the severity of the violation and duration of the conditions giving rise to the breach as well as the effectiveness of steps taken by the landlord to abate those conditions (id.).” Expert testimony as to the amount of damages is not required (RPL § 235-b[3][a]), because “both sides will ordinarily be intimately familiar with the conditions of the premises both before and after the breach . . . [and] are competent to give their opinion as to the diminution in value occasioned by the breach” (Park West Management Corp. at 329-330) (accord Solow v Wellner, 205 AD2d 339, 340 [1st Dept 1994], affd 86 NY2d 582 [1995]; Mateo v Anokwuru, 57 Misc 3d 61, 62 [App Term, 1st Dept, 2017 per curiam]; Gramatan Realty Corp. at *2).

In this case, the Claimants are not seeking a rent abatement, and neither party even addressed the issue of a rent abatement. If anything, the testimony showed that when the Claimants complained to the Defendant about the roach issue, the Defendant took prompt steps to secure the services of an exterminator, and the Exterminator not only addressed the issue in the Property itself but also in a separate apartment that, apparently, was the source of the roaches. Even Salgado acknowledged the Defendant was responsive and sent the Exterminator to the Property each time Salgado complained about the roaches, and he stated that after his last complaint in or around August or September, 2019, he made no further complaints to the Defendant about the roaches. It is clear the Defendant acted in “a reasonable amount of time to correct [the] condition” involving the roaches (Gawad at *1).

While a tenant may be entitled to a rent abatement if the landlord breaches the warranty of habitability due to an insect infestation (and the Court is not finding such breach in this case), courts have emphatically stated that consequential damages, such as property damages, cannot be recovered for such a breach. For example, in Joseph v Apartment Management Associates, LLC (30 Misc 3d 142(A), 2011 NY Slip Op 50303(U) (App Term, 2d Dept, 2nd, 11th & 13th Jud Dists 2011), a tenant sued the landlord’s managing agent to recover $5,000.00 for loss of personal property resulting from a bedbug infestation. After trial, the lower court awarded the tenant $3,342.83. On appeal, the Appellate Term noted that “in an action based upon a landlord’s breach of the implied warranty of habitability, consequential damages, such as for property damage, are not recoverable [citations omitted]” (2011 NY Slip Op 50303[U] at *1) (accord Couri v Westchester Country Club, Inc., 186 AD2d 712, 715 [2d Dept 1992]; Butter-Warnett v [*5]782 East 32nd LLC, 21 Misc 3d 143[A], 2008 NY Slip Op 52459[U], *1 [App Term, 2d Dept, 2nd & 11th Jud Dists 2008]; 303 Beverly Group, L.L.C., 190 Misc 2d 69, 70-71 [App Term 2d Dept 2001]; see Ludlow Properties LLC, 4 Misc 3d at 520 [the court granted a 45% rent abatement for bedbugs but did not award the tenant any specific damages due to his having to throw out the couch, the armoire, books, towels, clothes, and other items]).

Even if the Court found, in this case, a breach of the warranty of habitability and could award consequential damages based on the Claimants’ assertion that some of their property either was destroyed or had to be cleaned due to the presence of roaches, the Claimants failed to submit proof of such damages either by two written estimates or a bill marked paid showing the cost of remediating such damages, as required by Uniform City Court Act § 1804. The only proof offered by the Claimants was a paid invoice from Bob’s Discount Furniture (Claimants’ Exhibit 5) showing how much Salgado paid for various pieces of furniture as of March 15, 2016. Only one item on that list – the ottoman – was deemed “lost” due to the roaches (Claimants’ Exhibit 6), but the Claimants failed to submit any proof of the value of such ottoman as of December 2019, approximately three and a half years after its purchase. The Claimants failed to submit anything indicating the value of the other “lost” items on Claimants’ Exhibit 6, and they failed to submit anything indicating the cost of cleaning the other items listed on Claimants’ Exhibit 6. As a result, the Claimants are not entitled to any payment from the Defendant.[FN2]

The Court, in this small claims action, must “do substantial justice between the parties” (Uniform City Court Act § 1804). Substantial justice requires the Court to deny, in its entirety, the Claimants’ claim against the Defendant.

Footnotes

Footnote 1:Although the Lease provided for a term until March 31, 2020, neither party testified as to whether the Claimants incurred any penalty for moving out of the Property early, or even whether the Defendant consented to the early termination of the tenancy.

Footnote 2:The Lease is also clear, in Paragraphs 5 and 10, that the Defendant is not responsible for any loss regarding the Claimants’ personal property. “