BACKGROUND Plaintiff commenced this action pursuant to a summons and endorsed complaint, filed on July 26, 2018, seeking $25,000 in damages based on breach of warranty of habitability and related claims, as a result of renovations which took place at 250 West 50th Street in 2017 and 2018. On December 9, 2019, the court held a bench trial and reserved decision. FINDINGS OF FACT Plaintiff was the rent stabilized tenant of record for apartment 3U at 250 West 50th Street, New York, New York 10019. The landlord of the premises is ASN 50th Street LLC. Plaintiff lived in apartment 3U for approximately 20 years. The last lease renewal executed between the parties is dated April 7, 2017, and was for a term running from April 1, 2017 through September 30, 2018 (Ex 6) at a rent of $580.00 per month. In August 2017, the building started a major renovation of all the hallways and the common areas including the lobby and the second floor amenity spaces. The second floor amenity spaces included the fitness center, a lounge, the management office and the pool and sauna. A terrace space on the second floor was also part of the renovations. Plaintiff’s apartment looked out on the terrace space, and was directly over the second floor renovations. The landlord undertook the renovations because they felt the common areas were very outdated. The building is approximately 20 years old. Plaintiff testified that he felt his apartment was uninhabitable for approximately a year and a half, primarily due to noise from the renovations. Plaintiff is a film producer and generally works from home. Plaintiff testified that the noise from the construction was so severe, he could not conduct his life as ususal in his apartment. The court found plaintiff to be a credible witness. On two occasions items fell off the wall in plaintiff’s apartment due to the renovations. These included a bathroom mirror and a piece of artwork. Plaintiff used other spaces for work during the day, including other friends apartments, Starbucks, libraries and an 8th floor lounge that the building made available to its residents during the renovations. Plaintiff requested that his landlord move him to a different apartment because of the noise in Apartment 3U. The building is in receipt of a 421-a tax abatement and 20-25 percent of the building, including the apartment plaintiff lived in, is designated as affordable housing. Plaintiff put in a written request to be moved, supported by documentation from his physician. Plaintiff was placed on a waiting list for the next appropriate unit in the building and marked as a priority on that waiting list. Email correspondence between the parties covering plaintiff’s complaints and defendants’ responses were admitted in evidence (Ex 5). Plaintiff testified that work often went on beyond normal workings hours and took place at night or very early in the morning. Plaintiff submitted audio recordings of the noise on various occasions between January and September 2018 to evidence how loud the drilling was (Ex 14 & 14A). The times recorded included weekend mornings and at least two dates where it was before 6:30 am. The recordings do establish that the noise level was significant enough to prevent plaintiff from enjoying the use of his apartment while the drilling took place. Plaintiff also submitted photos to show the extent of the project (Ex 1). Plaintiff made a number of complaints about the work through 311 (Ex 9). Although plaintiff submitted a print out of construction related violations from DOB (Ex 8), there was no evidence in the record at trial that any violations for noise were issued. In August 2018, plaintiff signed a new lease (Ex 6A) for apartment 6U and was moved to that unit. Plaintiff was also required to sign a addendum to the Lease (Ex A) advising that the move in date could be delayed and that there would be ongoing construction during his tenancy in the new unit. The rent for the new apartment was $825.00 per month. On November 29, 2018, plaintiff filed an overcharge complaint with DHCR based on the increase in rent as a result of switching apartments (Ex 13). Plaintiff seeks the following damages (Ex 12): one year 100 percent rent abatement for apartment 3U covering a period from August 2017 forward; and $94.00 per month in rent overcharges for apartment 6U for a 24 month period; and $3500 for loss of income (in support of this claim plaintiff submitted two tax documents from 2017 and 2018 (Ex 7)); and costs for this action. Nancy Morrison (NM) testified on behalf of plaintiff. NM is a good friend of plaintiff. NM was not in the building during the period of the construction, but she did speak with plaintiff on one occasion on the phone and could near very loud noise from the construction. Ayanna Adams testified for defendants. Ms. Adams is a manager for the building. Ms. Adams testified that construction started in the Spring of 2017. Ms. Adams testified that the building attempted to keep tenants notified of when the noise from construction would be particularly bad. Ms. Adams testified that the landlord set up a wi fi lounge on the 8th floor for tenants to use during the period of construction, and arranged for temporary gym memberships for tenants to use at a different location. Ms. Adams testified that the landlord hired a resident services coordinator to act as a liaison between the construction team, building management and the residents. Ms. Adams submitted before and after pictures of work done in the common areas (Ex B) and a copy of the Tenant Protection Plan for the construction project (Ex C). Ms. Adams acknowledged in her testimony that work was done at night and in the early morning hours. Ms. Adams testified that this was to accommodate two restaurants and a supermarket that occupy ground floor retail spaces and avoid disrupting those businesses. DISCUSSION A residential lease is deemed a sale of shelter and services by the landlord, who impliedly warrants that the premises are fit for human habitation, that the condition of the premises is in accord with the uses reasonably intended by the parties, and that the tenants are not subjected to any conditions endangering or detrimental to their life, health or safety (Park W. Mgmt. Corp. v. Mitchell, 47 NY2d 316, 325(1979). There was no constructive eviction here because plaintiff never abandoned the premises (see, Barash v. Pennsylvania Term. Real Estate Corp., 26 NY2d 77, 308 N.Y.S.2d 649, 256 N.E.2d 707). Thus, Plaintiff is not entitled to a 100 percent abatement. In determining damages, the court must measure “the difference between the fair market value of the premises if they had been as warranted, as measured by the rent reserved under the lease, and the value of the premises during the period of the breach (Park West Management Corp., 47 NY2d 316 at 329).” Courts typically examine 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 at p.329). Plaintiff established at trial that there was excessive noise as a result of the construction, often on weekends and early morning hours and that the landlord, despite having ample notice, failed to take any effective steps to abate the noise (Nostrand Gardens Co-Op v. Howard 221 AD2d 637, 638). The court finds that plaintiff is entitled to a 50 percent abatement for the one year period that the condition existed in apartment 3U. The cause of action for rent overcharge is dismissed without prejudice as it is pending at DHCR and the record at trial would be insufficient to make a determination on the claim.1 Plaintiff’s claim for loss of income is also dismissed. Plaintiff failed to establish by a preponderance of evidence that the decrease in income from 2017 to 2018 was a result of noise in the subject building. Based on the foregoing, the court finds that plaintiff is entitled to a judgment against defendant ASN 50th Street, LLC in the amount of $3,480.00 plus costs and interest from July 26, 2018. The action is dismissed as against Avalon Bay Communities Inc. This constitutes the decision and order of the court. Dated: December 10, 2019 New York, New York
