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A woman sickened by the “minimal” mold growth found in her apartment — as opposed to the “full blown active mold growth” that predominates the case law — has been awarded a full rent abatement for the period she was constructively evicted from her Manhattan apartment. “Courts have long recognized dust as a condition which results in a violation of the warranty of habitability,” Housing Court Supervising Judge Ernest Cavallo of Manhattan wrote in 360 West 51st Street v. Cornell, 106494/03. “The [landlord] suggests that the Court should not award any abatement because [the tenant's] reaction was unique, not that of an ‘ordinary tenant.’ The Court asked for cases to support that position and the attorneys for [the landlord] provided none on point.” Cavallo awarded the tenant, Brenda Cornell, 6.2 months rent, a total of $17,050. Her personal injury case against the building’s owner, 360 West 51st Street Realty, remains ongoing in Manhattan Supreme Court. The landlord initiated the nonpayment proceeding seeking unpaid rent from November 2003 through April 2004, when the parties agreed to terminate the lease. Cornell’s answer raised the affirmative defenses of constructive eviction and violation of the warranty of habitability. She counterclaimed on the same grounds, seeking $25,000. Cavallo did not rule on the counterclaim, holding that Cornell may seek damages in her Supreme Court action. Cornell moved into the four-bedroom apartment on 51st Street, which she usually shared with a roommate, in 1997, according to the decision. Under her most recent lease, which commenced in July 2003, monthly rent totalled $2,750. Four months after she signed the lease extension, Cornell began withholding rent, claiming dust and mold made the apartment uninhabitable. She suffered from a rash, fatigue, headaches and shortness of breath. In October 2003, the building’s new owners began renovations in the basement. The day contractors removed old furniture and an unused oil tank, Cornell experienced dizziness, another rash, swollen eyes and “a metallic taste in her mouth,” among other things, according to the decision. “Cornell testified that she moved in with a friend and never slept another night in her apartment,” Cavallo wrote. On three occasions — after trips back to her apartment to pick up belongings or meet with city inspectors — Cornell’s problems became so bad that she went to an emergency room for treatment, she told the court. “At the time of trial she was better but still did not have her previous stamina or energy,” Cavallo wrote. “She described a life in limbo.” Cornell’s attorney, Beatrice Lesser of Gallet Dreyer & Berkey, called four environmental scientists and a physician to testify as to the pollution and its effects. The landlord countered with numerous theories, including that the apartment had a normal amount of mold and that Cornell’s symptoms were the product of anemia, not allergic reactions. Under New York’s Real Property Law and subsequent case law, a landlord’s duty to keep a residence free of dangerous conditions is “coextensive and interdependent with the duty to pay rent,” Cavallo wrote, citing Fourth Federal Savings Bank v. 32-33 Owners Corp., 236 AD2d 300. “When a landlord has been found to have breached this covenant the tenant may be eligible for an abatement of his rent.” NEITHER SIDE CONVINCING He added that neither side presented a wholly convincing case. “There are troubling aspects of each claim and theory advanced by each party,” the judge wrote. Cornell’s experts, for example, failed to explain “which spore was the culprit, which particulate triggered the reaction or which combination resulted in the symptoms.” The landlord, on the other hand, failed to explain why a tenant who had just renewed her lease and always paid on time would leave her belongings and move out if she was not ill. The key to his decision, the judge wrote, was the testimony of Cornell, a disc jockey and producer. “Ms. Cornell presented a portrait of a happy life, excellent health, a lot of physical activity in the gym and on her bicycle, an avid interest in music with aspirations to turn her hobby into a career, a beautiful apartment tastefully decorated, a series of congenial roommates and then poof, a cloud of dust and spores arose from the basement and ruined it all,” Cavallo stated. After noting that the landlord failed to find case law to support its claim that the court should not award any abatement because “Cornell’s reaction was unique,” Cavallo held in favor of Cornell. “She has shown by a preponderance of the evidence that a combination of metallic dust and fungi existed in her apartment, that petitioner caused or created the conditions by its acts in the basement, that the condition affected her health and that she abandoned the premises as a result of petitioner’s act and omission,” Cavallo held. Cornell’s attorney, Lesser, said the decision made an important distinction in a quickly growing legal area. “This case looked more on the effect on the inhabitant [than] the level of mold,” she said. The “case is important because it upheld the tenants claim that the warranty of habitability had been violated when she could not live in the building after her mold exposure.” Samantha D. Migdal of Landman Corsi Ballaine & Ford represented 360 West 51st Street. She could not be reached to comment.

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