DECISION/ORDER An abatement hearing was conducted in this nonpayment proceeding at which time the respondent, Cheryl Lee testified, and petitioner produced two witnesses, the superintendent, Nancy Romero, and the housing assistant, Philipa Jacob. The initial stipulation, dated March 8, 2019, contained several conditions including: floor tiles throughout, border throughout, stove, windows in kitchen and living room, holes throughout apartment, plaster and paint bathroom ceiling, toilet tissue holder and towel rack need repair, electrical plates and outlets, and closet floors throughout. Access was set for April 12 and 18, 2019, with further access to be arranged by the parties. Respondent Cheryl Lee testified credibly in support of her breach of warranty of habitability defense. She stated she was home on the first two access dates, April 12 and April 18, 2019, and no one from NYCHA came to the apartment. Respondent restored the proceeding by OSC, returnable June 27, 2019, stating in her affidavit that NYCHA failed to comply with the March 8, 2019 court ordered access dates. The OSC was adjourned to August 1, 2019 for an inspection by DHPD which was conducted on July 9, 2019. HPD found: defective tiles throughout entire apartment including closets, defective border throughout, defective window/lower counterbalances in kitchen and living room, holes in the walls throughout, infestation of mice, bathroom ceiling needs paint and plaster, missing electrical plates throughout, and defective light fixture at ceiling in room, “east 2″. The infestation of mice was listed as a C violation, and the remaining seven violations are B violations. The HPD report was in the court file on August 1, 2019 and available to both parties. On August 1, 2019 the parties signed a second stipulation incorporating the HPD violations, and set access dates for August 9 and August 12, 2019. NYCHA consented to completing the repairs within thirty (30) days of the access dates. Respondent testified credibly that she was home on August 9 and August 12, 2019, and NYCHA failed to appear on both dates. Respondent testified that following petitioner’s failure to appear on the court ordered access dates, petitioner’s agent, Ms. Jacobs, called to set up new access dates, specifically September 20 and 24, 2019. Respondent stayed home on both dates, and petitioner failed to appear on September 20, 2019. The super came to the apartment on September 24th at 2:45 p.m. without workers. Respondent testified credibly that the terrible conditions in her apartment had a significant effect on her life and her family’s life. She trips on the floors as the wood sticks up between the front door and the kitchen. She cannot have company in the apartment, she cannot have her family in her apartment for dinner, or holidays. She lives in the subject apartment with her husband and 18 year old daughter. Nancy Romero, petitioner’s superintendent, testified for NYCHA. Ms. Romero stated she spoke to respondent yesterday, the day before the abatement hearing, and that was the first time they communicated. The witness was not aware of the four court ordered access dates1, and she stated the first access date she was aware of was August 20, 2019. The witness had no personal knowledge of what occurred on August 20, 2019, whether respondent was home or what occurred. The second witness to testify for petitioner was Phillipa Jacobs, the housing assistant. Ms. Jacobs testified that she was not aware of the four court ordered access dates. She stated she called respondent about access on August 13th but the witness had no idea if respondent was notified of this access date in advance. She testified that respondent was called on the morning of September 20th for access that day, and she had no knowledge if respondent was notified of the request for access. When asked if respondent was notified in advance of the access date, the witness testified the tenant is notified in the stipulation. It is undisputed that September 20, 2019 was not a court ordered access date nor was it included in a stipulation. This witness was not credible and much of her testimony was based on the personal knowledge of other employees and not her own. Discussion The court had the opportunity to observe and evaluate the testimony and demeanor of respondent Cheryl Leer, as well as the petitioner’s witnesses Nancy Romero and Phillipa Jacobs. Powers v. Babic, 177 AD2d 432 (AD, 1st, Dept, 1991), see also Mozzafari v. Fisher, 21 Misc 3d 1105(A), 2008 N.Y. slip OP. 51971(U); Claridge Gardens, Inc., v. Menotii, etal, 160 AD2d 544 (AD 1st, Dept., 1990); Maple Avenue Realty v. Hart, NYLJ 4/9/13, p 24 c 3 (AT 2nd Dept, 2nd, 11th & 13th Jud Dists.); Hillside Place, LLC v. Lewis, NYLJ 12/15/10 p 36 c 6 (AT, 2nd Dept, 2nd, 11th & 13th Jud. Dists.); Rush Realty Assoc v. Weston, 25 Misc3d 136(A), (AT, 2nd Dept, 2009); Apolon v. Jeanmary, etal. 25 Misc3d 127 (A) (AT, 2nd Dept., 2009); DePaolo v. Thomas, etal, 25 Misc3d 128(A) (AT, 2nd Dept, 2009). An abatement based upon the implied warranty of habitability pursuant to Real Property Law section 235(b) protects against conditions that materially affect the health and safety of tenants or deficiencies that in the eyes of a reasonable person deprive the tenant of those essential functions which a residence is expected to provide. Sollow v. Wellner, 86 NY2d 582, 587 (1995), Park West Management Corp., v. Mitchell, 47 NY2d 316, 329 (1979) The respondent has the burden of proof on his affirmative defense that the landlord breached the warranty of habitability. “In ascertaining damages, the finder of fact must weigh 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. Since both sides will ordinarily be familiar with the conditions of the premises both before and after the breach, they are competent to give their opinion as to the diminution in value occasioned by the breach (citations omitted).” Park West Management Corp., at 329. It is undisputed petitioner received notice of the housing code violations through three so ordered stipulations, as well as the inspection report by DHPD. It is undisputed that petitioner failed to appear on the four court ordered access dates, and its employees testified they were not aware of the court ordered dates. Petitioner’s two witnesses testified to different access dates, however, they had no personal knowledge of notifying respondent of the new dates, nor did they have personal knowledge of what occurred on those dates. Nancy Romero, the superintendent, did not speak to the respondent until the day before the abatement hearing. Respondent was a credible witness who established a prima facie case for breach of the warranty of habitability and a rent abatement. Respondent’s monthly rent is $106.44, petitioner received notice of the conditions at least by March 8, 2019 with the initial access date of April 12, 2019. It has been more than seven months from the first court ordered access date to the date of the hearing, and petitioner failed to appear on any scheduled access dates. Petitioner ignored the three stipulations with court ordered access dates. HPD placed one C violation and seven B violations on July 9, 2019, and the violations have not been cured. Respondent testified credibly about the significant impact the conditions have on her use and enjoyment of the apartment. Therefore, based on a preponderance of the credible evidence, respondent is awarded a fifty (50 percent) abatement from April through October 2019 in the amount of $372.54 in satisfaction of her abatement claims through October 2019. Respondent has a rent credit of $372.54 to be applied to any rent arrears or future rent due. This constitutes the decision and order of the court. Dated: November 13, 2019
