Scott E. Mollen
Scott E. Mollen ()

Landlord-Tenant—Tenant Allegedly Refused Access for Landlord to Exterminate Bedbug Infestation—Tenant Filed Federal Action Citing Violations of the Fair Housing Act and the Americans With Disabilities Act—Housing Court Advised Federal Court That Housing Court Is Equipped to Address Such Claims—Chemical v. Non-Chemical Methods of Exterminating Bedbugs

A landlord commenced a holdover summary proceeding, alleging that a tenant had “unreasonably refused the landlord access…in order for the landlord to exterminate to remove the bedbug infestation.” A notice of termination alleged that the tenant had stated that it would “not accept the bedbug treatment for medical reasons” and that the landlord had “offered alternative treatments that, in their determination, would not affect” the tenant’s medical condition. The landlord asserted that the tenant’s failure to provide access “has caused the infestation to spread into other apartments….”

Prior stipulations of settlement provided that the landlord would be permitted to visit the tenant’s apartment and determine whether the apartment was “prepared for…extermination” and the tenant would “provide access for the extermination” of bedbugs. A stipulation also provided that the tenant would list her personal items that were to be “placed in storage prior to the extermination date” and that the items would be “professionally cleaned” and returned back to the apartment. A stipulation further provided that if “cryonite…chemical…is not effective…the petitioner may restore the case to determine if a stronger/more effective method can be used.”

A prior consent order required the tenant to provide access. The consent order stated that the exterminator would use chemicals and the landlord would pay for the preparation of the extermination in advance of the treatment. However, the tenant thereafter filed a federal action, claiming that the landlord was violating her rights under the Fair Housing Act (FHA) and the American With Disabilities Act (ADA). The tenant asserted that “her unique health situation,” required that the landlord “make a reasonable accommodation when exterminating for bedbugs in her home, as any use of chemicals will have a negative impact on her health.” The Federal Court inquired of the Housing Court whether the tenant “would have the opportunity to raise the substance of her FHA and ADA claims in the Housing Court.” The Housing Court advised the Federal Court that “the Housing Court is an appropriate forum to provide [tenant] with the opportunity to litigate…FHA and ADA claims.”

The Federal Court determined that the tenant could raise her FHA and ADA claims in the Housing Court and denied the tenant’s request for a stay of the Housing Court proceedings. The Federal Court also stayed the federal action, “in deference to the jurisdiction of the Housing Court…over [s]tate landlord/tenant matters involving eviction proceedings.”

Following a hearing, the Housing Court found that the tenant had “failed to comply with her obligations to provide access to the landlord and the landlord’s exterminators pursuant to the…consent order.” The tenant also failed to timely provide the landlord with “a written estimate for bedbug extermination preparation,” but had provided such estimate after it had been due. The tenant had also failed to provide access for the bedbug extermination.

The court acknowledged that the tenant “suffers from a respiratory condition which ‘flairs up’ when she is exposed to certain environmental elements, such as fumes from an automobile’s exhaust and chemicals used in specified extermination treatment methods.” The court found that the tenant did suffer “from a ‘physical and medical…impairment…’” of a “system of the body; including…[her] respiratory organs, including…the cardiovascular system….” The court further found that the landlord is a “covered entity” and is “‘required to comply with any provision of” the Administrative Code of the city of New York, “by reasonably accommodating [tenant] when ‘furnishing…services in [her home].’” The court explained that “reasonable accommodation” means “‘such accommodation that can be made that shall not cause undue hardship in the conduct of the covered entity’s business.’”

Since the tenant “suffers from a condition contemplated by the anti discrimination statutes” and the tenant “is entitled to be reasonably accommodated by her landlord when removing the bedbug infestation in her home because of her health condition….,” the court had to address the issue of “whether the accommodation requires the landlord to use a non-chemical” extermination treatment, and “if so, which non-chemical treatment method is to be used, or whether an alternate form of an accommodation is appropriate.”

In 2014, in deference to the tenant’s health condition, the landlord’s extermination contractors had used “non-chemical methods in an attempt to remedy the bedbug infestation….” “[t]he prior non chemical treatment methods were unsuccessful….” and the landlord had thereafter “offered to temporarily relocate [the tenant] when using a chemical extermination process.” The tenant declined the offer. Thus, the landlord had attempted in “two (2) different ways, to accommodate her special needs, one (1) accommodation failed to cure the bedbug infestation and the other, [the tenant] declined.” A prior court decision had found “no case law directly on point relating to a dispute about the method of extermination [to be] used by a landlord or tenant to remedy a [bedbug] infestation code violation.”

The court found that the “use of insecticide is a generally accepted practice to treat [a] bedbug problem in [a] tenant’s apartment” and “properly preparing a premises for bedbug extermination is critical to effectively remedy the infestation.”

However, the court declined to hold that “the use of a non-chemical exterminate to remove the bedbug infestation…will be ineffective.” Testimony indicated that “extermination methods containing chemical insecticides are more effective at eradicating a bedbug infestation, then non-chemical methods.” The court opined that that did not mean that non-chemical treatments cannot be effective. The court noted that effective “[n]on chemical or ‘green methods’…eradicating a bedbug infestation include: ‘spray, freeze and vacuum’ and ‘cimi-shield.’”

A tenant’s expert testified that “the use of cimi-shield coupled with cryonite and vacuuming is the most effective method to eradicate bedbugs, and when using this method occupants may remain at the premises.” However, that expert had exterminated for bedbugs only three times in the last six months, and had not been to the tenant’s apartment “to see the degree of bedbug infestation in her apartment.” The court did not find credible, that expert’s claim that “the cimi-shield treatment ha[d] ‘never failed to cure a bedbug infestation’ and that if it did fail, he would recommend ‘steaming and reapplying the cimi-shield.’” The court characterized his testimony as sounding “rehearsed and uncredible.”

The landlord’s expert chemical witness was more credible. He stated that “the landlord is entitled to rely on the expertise of his exterminators when determining the type of extermination services to provide to his tenants.” The prior consent order required the tenant “to provide access to the [landlord's] contractors” on two different dates “in order to exterminate for bedbugs,” and the tenant failed to do. The consent order had specified that if there was a default, “either party may restore for appropriate relief. Upon restoration, the [landlord] may seek a final judgment of possession….”

The landlord argued that the consent order was a “stipulation of settlement, and stipulations of settlement are favored by the courts and not lightly set aside.” However, other cases involved stipulations which provided that upon default, there would be no further stays of execution of a warrant of eviction and the landlord would be entitled to “a judgment of possession.” The subject stipulation provided only that the landlord “may seek a final judgment of possession.” “[I]n the interest of justice,” the court refused to issue “a judgment of possession at this stage of the litigation.”

The court observed that:

the Legislature envisioned the [H]ousing [P]art of the Civil Court to be the appropriate forum in which to enforce housing standards” by any means the Court “believes…will be more effective to accomplish compliance or to protect and promote the public interest.” Moreover, “a [C]ourt may, ‘at any time, on its own initiative …make an order denying, limiting, conditioning, regulating, extending or modifying the use of any enforcement procedure.’

The court concluded that (a) the tenant’s medical conditions fell within the definition of a “disability,” (b) because of the tenant’s disability, the tenant was entitled to “a reasonable accommodation by her landlord when removing the bedbug infestation, (c) “testimony was inconclusive to determine whether the use of a nonchemical bedbug extermination treatment,…if properly prepared, will be ineffective or if the infestation at [tenant's] premises is so severe that chemical bedbug extermination treatments must be utilized),” (d) the landlord had “reasonably accommodated [the tenant]” by previously exterminating for bedbugs with a non chemical treatment and (e) non chemical treatment had “ failed to cure the bedbug infestation.” Moreover, the landlord had “reasonably accommodated [the tenant] by offering to temporarily relocate her and her family during the chemical bedbug extermination process.”

The court ordered that the landlord exterminate for bedbugs and that the tenant provide access for such extermination and follow up exterminations and inspections. The court further ordered the tenant to “ensure that the premises is properly prepared for bedbug extermination.” Additionally, the court directed that the landlord’s “contractors…perform the…extermination services by using any non chemical method (which may include cryonite, steam and freeze, which in the past posed no health risks to [the tenant], or any other non chemical treatment) that the [landlord's] contractors deem will be the most effective to eradicate the bedbug infestation…” of, if the tenant chooses, “the contractors may use a chemical treatment of [the landlord's] contractors choice, as long as [the landlord] relocates [the tenant] and her family, until it is safe for them to return to the premises.”

The court also ordered that access dates be arranged by the parties within 30 days and if access dates are not timely agreed upon by the parties, “the proceeding may be restored…for an order seeking appropriate relief.”

Finally, the court ordered that, if the tenant decides that she wants the use of “a non chemical method of extermination” and if the non chemical method of extermination fails to eradicate the bedbug infestation, “the proceeding may be restored for appropriate relief, including the issuance of an order for authority to use chemicals…with the understanding that the [tenant] and her family will be relocated during the process, until it is safe for them to return.”

2 Perlman Drive v. Stevens, L&T 74399/14, NYLJ 1202781584378, at *1 (Civ., KI, Decided Feb. 9, 2017), Avery, J.

Co-Ops Non-Judicial Foreclosure Sale—Summary Holdover Proceeding—Respondent Challenged the Propriety of a Non-Judicial Foreclosure Sale—Since Respondent Was Neither a Licensee Nor Holdover Tenant, Service of a Ten-Day Notice to Quit Was Improper and the Proceeding Was Dismissed

A petitioner commenced a holdover proceeding to recover possession of a “cooperative unit.” The respondent moved to dismiss the petition.

After the respondent had defaulted on his maintenance payments that were due to the cooperative corporation, the petitioner commenced a non-judicial foreclosure against the respondent. “Pursuant to such foreclosure, the shares of stock and leasehold were sold to the petitioner in accordance with the procedures set forth in UCC Article 9.” The petitioner thereafter commenced the subject summary holdover proceeding, alleging that the respondent is “a licensee, the basis of which has…been revoked as a result of the foreclosure.”

The respondent challenged the propriety of the non-judicial foreclosure sale and contended that “the notices in connection with such foreclosure were defective.” The respondent also argued that even if the foreclosure had been done properly, the holdover proceeding had been “improperly commenced.” The respondent argued that there is a landlord-tenant relationship, based upon the proprietary lease and therefore, “a thirty-day notice of termination of tenancy was required, rather than a ten day notice to quit.”

The petitioner asserted that “the non-judicial foreclosure was proper, and that all parties were notified.” The petitioner further argued that “any challenge to the foreclosure sale is not within the District Court’s jurisdiction in a summary holdover proceeding.” Additionally, the petitioner contended that it had “properly commenced this summary proceeding, as any previous landlord and tenant relationship was terminated as a result of the Non-Judicial foreclosure.”

The court explained:

Under similar circumstances as the proceeding herein, the court in Federal Home Loan Mtge. Assn. v. Perez, 40 Misc 3d 1, 4,…(App Term, 2d Dept, 2013), determined that RPAPL §§713 (1), (5), and (7) provides no basis for the assignee of a successful bid at a UCC article 9 non-judicial sale to maintain a summary proceeding. The court held that a summary proceeding was not appropriate and noted, “that if a new category of summary proceeding is to be created, it is for the Legislature, not the courts, to create it….”

The Perez court had reasoned that:

[a]s relevant here, RPAPL 713(7) provides for the maintenance of a summary proceeding to remove an occupant from ‘real property’ (RPAPL 701 [1]) where the occupant is a licensee of the person entitled to possession whose license has expired or been revoked. Tenant is not a licensee. Rather, he entered into possession as a tenant under a proprietary lease. If that lease has been terminated-and there is no allegation that it has-tenant is in possession as a holdover tenant. He is not in occupancy pursuant to a license. Thus, RPAPL 713(7) provides no basis for the maintenance of this proceeding….

The court then held that, under the subject circumstances and “in accordance with the binding Appellate Term case law, [it was] constrained to act within the limits of its jurisdiction and cannot expand its statutorily authorized power. Thus, the petition, which was based upon respondent’s status as a ‘licensee,’ is defective and must be dismissed. As such, the service of a ten-day notice to quit was likewise improper.”

Additionally, to the extent that the petitioner sought to cross move for summary judgment, the court held that such motion had not been properly noticed and was moot based on the dismissal of the petition. The court also noted that “any challenges to the non-judicial foreclosure are not properly before” the court.

Finally, the court suggested that the Legislature “may wish to review this situation as suggested by Dan M. Blumenthal, in his September 2013 article which appeared in The Nassau Lawyer entitled ‘Recent Appellate Term Rulings Make Gaining Possession of Collateral More Difficult for Foreclosing Lenders, Purchasers.’”

Accordingly, the court granted the respondent’s motion to dismiss the petition.

Chatham Square Owners v. Roth, LT-004853-16, NYLJ 1202780068408, at *1 (Dist., NA, Decided Feb. 22, 2017), Fairgrieve, J.