Madison EDJ LLC v. Clerveaux
Opinion
Madison EDJ LLC v Clerveaux 2024 NY Slip Op 30524(U)
February 21, 2024
Civil Court of the City of New York, Kings County Docket Number: Index No. 318810/22 Judge: Sergio Jimenez
Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.
FILED: KINGS CIVIL COURT - L&T 02/21/2024 09:49 AM INDEX NO. LT-318810-22/KI NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 02/21/2024
CIVIL COURT OF THE CITY OF EW YORK CO TY OF KINGS: HO SI G PART 0 ---------------------------------------------------------------------x MAD ISO EDJ LLC, Index No. 318810/22
Petitioners
-against- DECISIO A D ORDER
MEGAN CLERVEAUX,
Respondents.
---------------------------------------------------------------------x
Present:
Hon. Sergio Jimenez Judge, Housing Court
This nonpayment proceeding seeks recovery of the property at 452 Madison Street Apartment 3B in Brooklyn, New York 11221 for an alleged failure to pay rent. This proceeding was transferred from the resolution part to the trial part in May of 2023. After an in-person pre- trial conference, the court adjourned the proceeding for trial. The court conducted a trial on October 17, 2023, November 13 , 2023 and November 16, 2023. The proceeding was adjourned for the filing of post-trial memoranda and, once submitted, the court reserved decision. Claims
The parties stipulated to petitioner's prima facie case (Petitioner's A - G including the deed, MOR registration waiver, DHCR registration, current renewal lease, initial lease and rider, rent ledger and ERA P notice). As such, petitioner is deemed the owner, that the parties have an express written agreement to pay rent for the premises and that petitioner has a valid claim to the amount sought. Petitioner believes that they are due $18,771.77 as all rent due through December 2023. Respondent alleges a variety of defenses including: inappropriate predicate notice, inappropriate petition partial payment of rent, Tenant Safe Harbor Act, breach of warranty of
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habitability, repair and deduct, MDL §302-a defense claiming that there were a variety of rent- impairing violations that precluded the payment of rent for the time period where the condition existed, and constructive eviction. Respondent also interposed four counterclaims, namely: breach of warranty of habitability, seeking that the court issue an order to correct, harassment and attorneys' fees. Respondent argues that The Department of Housing Preservation and Development issued violations (which are all rent-impairing violations) 1 throughout 2019-2022 that were not corrected for at least six months. As such, respondent avers that petitioner should not be entitled to rent during the period of the petition. The court also took notice of all publicly available DHPD records 2 as well as prior index numbers between the parties 82567/16 and 50474/ 19. The Hearing
As petitioner's prima facie case was consented to the court proceeded, after opening statements, directly to respondent 's defenses. Respondent called as witnesses respondent's mother, Georgia Davis, respondent 's cousin Leroy Cummings and Respondent herself. The court accepted into evidence Rl-11 (excluding R9) which were a series of pictures, texts messages, travel records and a repair list. The respondent and her witnesses all testified as to the perceived conditions of the premises as well as various access dates and their results.
Petitioner, in rebuttal , called Ronald Ayala, the building superintendent, Angel Hall , maintenance manager for petitioner' s management company, and Osagie ldhodaro, the property manager. Petitioner introduced P H-R (work orders, photographs and a log of repairs). The petitioner's witnesses testified as to both actual work being done on the building and in
1 HMC §25-191 sets forth the list of rent impa iring violations, here relevant violation s were promulgated under
orders 507 and 595 . As no evidence was presented regard ing the eyehook violation , the court will not consider it. 2 The court is exp licitly in structed to take judicial notice of the DHPD violation reports as per Multip le Dwelling
Law §3 28(3).
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FILED: KINGS CIVIL COURT - L&T 02/21/2024 09:49 AM INDEX NO. LT-318810-22/KI NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 02/21/2024
respondent's apartment as well as efforts at work being done but being allegedly frustrated by respondent. Discussion
After considering the testimony presented by the parties, the documentary evidence presented and the pleadings of both parties the court finds that the petitioner has met their burden of proof subject to respondent 's defenses .
The first defense the court must analyze is the MDL §302-a defense. Commonly referred to as the defense of rent impairing violations, this defense is a bar on the owner collecting rent when there have been violations issued for conditions enumerated by the Department of Housing Preservation and Development in existence for more than six months (NY Mult Dwell §302-a; HMC §25-191 ). At the time the defense is raised, the party seeking to assert the defense must plead and prove the material facts to the defense and deposit with the clerk the amount sought recovered in the action (id.).
An owner' s potential responses to such a defense are limited and are: (i) if the condition did not, in fact, exist; (ii) the condition was, in fact corrected; (iii) the violation was caused by the resident or someone within the resident's control; or (iv) the resident failed to provide access for the purpose of correcting the violation (Id.).
Here, the issue of the deposit is not in question, neither in time nor in amount as the parties consented to the amount being deposited.
Given the extent that the testimony was equal in its credibility and did not necessarily preponderate over the other it is the party who bears the burden who will have their application denied (Rinaldi & Sons, Inc. v. Wells Fargo Alarm Service, Inc., 39 NY2d 191 [1976]). Here, the respondent has the burden of proof to prove their defense of the presence of a rent impairing
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violation. It is without question that there are a variety of conditions that meet the rubric of rent impairing violations set forth by the Housing Maintenance Code §25 -1 91. The gravamen of this proceeding is the alleged leaks throughout the apartment and in the public area. The court finds that these conditions existed and have remained for more than the six (6) month period as DHPD violations. As such, the court must turn its attention to the other responses presented by the petitioner to these rent impairing violations. The court finds that these responses were not met. The leaking conditions existed, were uncorrected, were not caused by the resident, and access was granted. As such petitioner has not defeated the MDL §302-a defense . The problem with a leak, and in particularly a reoccurring leak, is that the source must be addressed and, here, the continual nature of the leaks in the same place show that the work was not appropriately done. The issue of access, while relevant in analyzing a situation as this was clearly not an issue for either party, as shown by the numerous work orders entered into evidence. Even taking into account the various testimony of the parties, even if malicious one missed access date for the removal of DHPD violations does not trigger a defense to MDL §302-a rent impairing violation.
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