Scott E. Mollen
Scott E. Mollen ()

Landlord-Tenant—Bedbugs in NYCHA Apartment—Damages—Warranty of Habitability—Multiple Dwelling Law §80

The plaintiffs commenced an action against the NYC Housing Authority (NYCHA), alleging that based on NYCHA’s negligence, the plaintiffs’ apartment had “never been eradicated of a bedbug infestation condition.” The plaintiffs claim that “the condition began in 2012 and continues to date.” NYCHA admitted that “the apartment has had bedbugs on and off over a period of time, but denies any liability.” A jury trial commenced and continued to verdict in favor of the plaintiffs. At the close of defendant’s case, the plaintiffs moved for a directed verdict on the issue of NYCHA’s liability.

The court observed that NYCHA was created, inter alia, to provide “adequate, safe and sanitary low rent housing accommodations.” The court reviewed the Warranty of Habitability (WOH) (Real Property Law §235-b) and explained that NYCHA is subject to the WOH. The court also noted that the presence of bedbugs in an apartment has been held to constitute a breach of the WOH. The court further stated that “[a]lthough 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.”

The court also reviewed Multiple Dwelling Law (MDL) §80, which requires owners of multiple dwellings to maintain such premises “clean and free from vermin, dirt, filth, garbage or other thing or matter dangerous to life or health….” MDL §80 also provides that tenants may be punished where unsafe conditions have been caused by the tenant, by members of the tenant’s family or by tenant’s guests. The court further explained that “[o]nly in cases where the problem is caused solely by the tenant is the landlord relieved of its obligations under [MDL §80].”

NYCHA alleged that “the condition in the apartment was caused by the plaintiffs.” However, there was “no record of the plaintiffs having been charged with a violation” of MDL §80 by NYCHA or “that NYCHA took any steps to punish the plaintiffs for violating MDL [§80] by invoking the procedures of [MDL]” §304. The court noted that it “ appeared that the conditions observed by NYCHA employees when they visited plaintiffs’ apartment to treat bedbugs were not of the nature to 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.” Moreover, “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 Housing Maintenance Code (HMC) of the NYC Admin. Code addresses eradication of rodents and insects.

NYCHA argued that the plaintiffs were “occupants in control” of the premises and they had “an equal obligation to keep the premises free from infestation and to eradicate the bedbug condition.” The court explained that 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 to tenants states that “NYCHA or a NYCHA approved contractor is responsible to eradicate bedbugs.” The court opined that such procedure “makes complete sense,” since “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.” The court stated that if a lease shifted responsibility to the plaintiffs, “then presumably defendant would have produced that document.” The court further stated that “[w]hether a landlord could negate by contract this statutory mandate is questionable.”

Thus, the court held that NYCHA has “the sole responsibility for eradication of bedbugs under this regulation” and the “credible evidence is that eradication of the bedbugs has not been successful in spite of the efforts of the defendant.” The court found that although NYCHA’s efforts may have been “well intentioned,” they were “inadequate.” The experts and NYCHA’s exterminator had testified that “the best practice is to remove switch plates, outlet covers, moldings and other areas which commonly serve as harborage for bedbugs prior to spraying insecticides.” NYCHA did not do this before applying pesticides. The testimony indicated that NYCHA never does that and the court questioned how eradication could “be successful if the industry-accepted protocols are not followed?”

NYCHA witnesses also testified that absent a complaint from an adjacent apartment, the adjacent apartment will not be fumigated at the same time. However, expert testimony stated that “bedbugs migrate and will leave one apartment if possible after fumigation, when the insecticide wears off, the bedbugs can return to the first apartment.”

As to whether the tenants bore some responsibility for the conditions that prevented the eradication of bedbugs, the court held that such issue is “a question of fact for the jury to decide” and that did “not relieve the defendant of its liability under the statutes but permits the defendant to present to the jury as something to be considered on this issue of the comparative fault of the plaintiffs.”

The court also cited NYC Admin. Code Section 27-2019, which required elimination of “harborages.” Testimony indicated that “when the plaintiffs were informed that furniture or structures in their apartment were potential harborages for bedbugs, those structures or furniture pieces were eliminated or cleaned.” However, other areas of harborage under the control of the NYCHA, e.g., “areas behind walls, switch plates and moldings were never removed by defendant even though treating such areas is in the protocol for elimination of bedbugs.”

The court stated “[i]t is a question of fact for the jury to decide as to whether the plaintiffs maintained their apartment in a manner to create harborages making it impossible for the defendant to eradicate the bedbug infestation.” Although “it would not relieve the defendant of liability for failing to eradicate the bedbug infestation,” it could “be considered by the jury on the issue of the comparative negligence of the plaintiffs.”

NYCA asserted that the applicable standard is “whether it acted in a reasonable manner to eradicate bedbugs and not whether it was actually successful in doing so.” However, NYCHA “needed to produce expert testimony on what is the accepted industrywide standard for eradicating bed bugs in multiple dwellings of nine or more units. None was produced.” NYCHA “did not produce an expert familiar with the industry wide treatment of bedbugs.” The court observed that since “the bed bugs were a recurring condition,” it appeared that NYCHA had not acted “in a reasonable manner and that perhaps other steps needed to be taken.” Moreover, a NYCHA expert testified that “after the initial treatment, a second application should be made within ten days to two weeks for optimum results.” Nothing in NYCHA’s work orders established that such procedure was followed.

NYCHA’s expert also testified that “there is a difference between a recurring bedbug condition and one where the bedbugs are reintroduced.” In a recurring situation, “the same bedbugs return to the apartment indicating that the treatment was not successful.” In a reintroduction condition, “someone has done something to bring new bedbugs into the apartment.”

The court reasoned that “[i]f you are the tenant, how the bedbugs arrived is of little import. They are there.” NYCHA’s expert testified that based on his expertise and training, he could ascertain whether the bedbugs are the same ones or new ones infesting the apartment. However, this was not done and it would not relieve NYCHA of its responsibility. Rather, “it would go to the comparative fault of plaintiffs.”

Although NYCHA produced a document which was given to tenants before spraying the insecticides so that the procedure would be successful, NYCHA did not produce evidence as to what tenants were told when they move in “to keep vermin, specifically bedbugs, from entering their apartment in the first place.” The court questioned whether, if there is a recurring problem, what did NYCHA do to counsel tenants, “so as to reduce the potential of continuing infestation?” The court also noted that NYC’s website advises tenants that “eradication of bed bugs is the landlord’s responsibility” and that the NYC Dep’t of Housing and Development (HPD) “lists bedbugs as a Class B violation which must be corrected by the landlord within 30 days or face a penalty.”

The court concluded that since NYCHA is the landlord, it “must take full responsibility for its failure to eliminate bedbugs in plaintiffs’ apartment.” The court also noted that the city “considers this such a serious situation that it requires a landlord to give notice to a tenant receiving a vacancy lease of a bedbug infestation history for the premises rented for the previous year….”

The court found that the credible evidence demonstrated that “bedbugs existed in the plaintiffs’ apartment since 2012 and…continues until today.” Additionally, the court noted that although “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.” The court stated that this was “apparently authorized by [NYC] Civil Court Act §110(c).” The court said that “[w]hy 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.”

Accordingly, the court granted the plaintiffs’ motion for a directed verdict on the issue of the liability. However, the court further held that “[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 and whether the plaintiffs have suffered any damages.”

Aponte v. N.Y. City Housing Auth., 101454/13, NYLJ 1202770540953, at *1 (Sup., RI, Decided Oct. 13, 2016), Straniere, J.

Landlord-Tenant—Bedbugs in NYCHA Apartment—Damages—Warranty of Habitability—Multiple Dwelling Law §80

The plaintiffs commenced an action against the NYC Housing Authority (NYCHA), alleging that based on NYCHA’s negligence, the plaintiffs’ apartment had “never been eradicated of a bedbug infestation condition.” The plaintiffs claim that “the condition began in 2012 and continues to date.” NYCHA admitted that “the apartment has had bedbugs on and off over a period of time, but denies any liability.” A jury trial commenced and continued to verdict in favor of the plaintiffs. At the close of defendant’s case, the plaintiffs moved for a directed verdict on the issue of NYCHA’s liability.

The court observed that NYCHA was created, inter alia, to provide “adequate, safe and sanitary low rent housing accommodations.” The court reviewed the Warranty of Habitability (WOH) (Real Property Law §235-b) and explained that NYCHA is subject to the WOH. The court also noted that the presence of bedbugs in an apartment has been held to constitute a breach of the WOH. The court further stated that “[a]lthough 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.”

The court also reviewed Multiple Dwelling Law (MDL) §80, which requires owners of multiple dwellings to maintain such premises “clean and free from vermin, dirt, filth, garbage or other thing or matter dangerous to life or health….” MDL §80 also provides that tenants may be punished where unsafe conditions have been caused by the tenant, by members of the tenant’s family or by tenant’s guests. The court further explained that “[o]nly in cases where the problem is caused solely by the tenant is the landlord relieved of its obligations under [MDL §80].”

NYCHA alleged that “the condition in the apartment was caused by the plaintiffs.” However, there was “no record of the plaintiffs having been charged with a violation” of MDL §80 by NYCHA or “that NYCHA took any steps to punish the plaintiffs for violating MDL [§80] by invoking the procedures of [MDL]” §304. The court noted that it “ appeared that the conditions observed by NYCHA employees when they visited plaintiffs’ apartment to treat bedbugs were not of the nature to 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.” Moreover, “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 Housing Maintenance Code (HMC) of the NYC Admin. Code addresses eradication of rodents and insects.

NYCHA argued that the plaintiffs were “occupants in control” of the premises and they had “an equal obligation to keep the premises free from infestation and to eradicate the bedbug condition.” The court explained that 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 to tenants states that “NYCHA or a NYCHA approved contractor is responsible to eradicate bedbugs.” The court opined that such procedure “makes complete sense,” since “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.” The court stated that if a lease shifted responsibility to the plaintiffs, “then presumably defendant would have produced that document.” The court further stated that “[w]hether a landlord could negate by contract this statutory mandate is questionable.”

Thus, the court held that NYCHA has “the sole responsibility for eradication of bedbugs under this regulation” and the “credible evidence is that eradication of the bedbugs has not been successful in spite of the efforts of the defendant.” The court found that although NYCHA’s efforts may have been “well intentioned,” they were “inadequate.” The experts and NYCHA’s exterminator had testified that “the best practice is to remove switch plates, outlet covers, moldings and other areas which commonly serve as harborage for bedbugs prior to spraying insecticides.” NYCHA did not do this before applying pesticides. The testimony indicated that NYCHA never does that and the court questioned how eradication could “be successful if the industry-accepted protocols are not followed?”

NYCHA witnesses also testified that absent a complaint from an adjacent apartment, the adjacent apartment will not be fumigated at the same time. However, expert testimony stated that “bedbugs migrate and will leave one apartment if possible after fumigation, when the insecticide wears off, the bedbugs can return to the first apartment.”

As to whether the tenants bore some responsibility for the conditions that prevented the eradication of bedbugs, the court held that such issue is “a question of fact for the jury to decide” and that did “not relieve the defendant of its liability under the statutes but permits the defendant to present to the jury as something to be considered on this issue of the comparative fault of the plaintiffs.”

The court also cited NYC Admin. Code Section 27-2019, which required elimination of “harborages.” Testimony indicated that “when the plaintiffs were informed that furniture or structures in their apartment were potential harborages for bedbugs, those structures or furniture pieces were eliminated or cleaned.” However, other areas of harborage under the control of the NYCHA, e.g., “areas behind walls, switch plates and moldings were never removed by defendant even though treating such areas is in the protocol for elimination of bedbugs.”

The court stated “[i]t is a question of fact for the jury to decide as to whether the plaintiffs maintained their apartment in a manner to create harborages making it impossible for the defendant to eradicate the bedbug infestation.” Although “it would not relieve the defendant of liability for failing to eradicate the bedbug infestation,” it could “be considered by the jury on the issue of the comparative negligence of the plaintiffs.”

NYCA asserted that the applicable standard is “whether it acted in a reasonable manner to eradicate bedbugs and not whether it was actually successful in doing so.” However, NYCHA “needed to produce expert testimony on what is the accepted industrywide standard for eradicating bed bugs in multiple dwellings of nine or more units. None was produced.” NYCHA “did not produce an expert familiar with the industry wide treatment of bedbugs.” The court observed that since “the bed bugs were a recurring condition,” it appeared that NYCHA had not acted “in a reasonable manner and that perhaps other steps needed to be taken.” Moreover, a NYCHA expert testified that “after the initial treatment, a second application should be made within ten days to two weeks for optimum results.” Nothing in NYCHA’s work orders established that such procedure was followed.

NYCHA’s expert also testified that “there is a difference between a recurring bedbug condition and one where the bedbugs are reintroduced.” In a recurring situation, “the same bedbugs return to the apartment indicating that the treatment was not successful.” In a reintroduction condition, “someone has done something to bring new bedbugs into the apartment.”

The court reasoned that “[i]f you are the tenant, how the bedbugs arrived is of little import. They are there.” NYCHA’s expert testified that based on his expertise and training, he could ascertain whether the bedbugs are the same ones or new ones infesting the apartment. However, this was not done and it would not relieve NYCHA of its responsibility. Rather, “it would go to the comparative fault of plaintiffs.”

Although NYCHA produced a document which was given to tenants before spraying the insecticides so that the procedure would be successful, NYCHA did not produce evidence as to what tenants were told when they move in “to keep vermin, specifically bedbugs, from entering their apartment in the first place.” The court questioned whether, if there is a recurring problem, what did NYCHA do to counsel tenants, “so as to reduce the potential of continuing infestation?” The court also noted that NYC’s website advises tenants that “eradication of bed bugs is the landlord’s responsibility” and that the NYC Dep’t of Housing and Development (HPD) “lists bedbugs as a Class B violation which must be corrected by the landlord within 30 days or face a penalty.”

The court concluded that since NYCHA is the landlord, it “must take full responsibility for its failure to eliminate bedbugs in plaintiffs’ apartment.” The court also noted that the city “considers this such a serious situation that it requires a landlord to give notice to a tenant receiving a vacancy lease of a bedbug infestation history for the premises rented for the previous year….”

The court found that the credible evidence demonstrated that “bedbugs existed in the plaintiffs’ apartment since 2012 and…continues until today.” Additionally, the court noted that although “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.” The court stated that this was “apparently authorized by [NYC] Civil Court Act §110(c).” The court said that “[w]hy 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.”

Accordingly, the court granted the plaintiffs’ motion for a directed verdict on the issue of the liability. However, the court further held that “[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 and whether the plaintiffs have suffered any damages.”

Aponte v. N.Y. City Housing Auth., 101454/13, NYLJ 1202770540953, at *1 (Sup., RI, Decided Oct. 13, 2016), Straniere, J.