Thor 560 W. 136th St., LLC v Sanghvi 2024 NY Slip Op 34474(U) December 20, 2024 Supreme Court, New York County Docket Number: Index No. 160975/2021 Judge: David B. Cohen 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: NEW YORK COUNTY CLERK 12/23/2024 04:39 P~ INDEX NO. 160975/2021 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 12/21/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DAVID B. COHEN PART 58 Justice ----------------------------------------------------------------- ----------------X INDEX NO. 160975/2021 THOR 560 WEST 136TH STREET, LLC MOTION DATE 12/15/2023 Plaintiff, MOTION SEQ. NO. 001 - V -
PATHIK SANGHVI, DECISION + ORDER ON MOTION Defendant. ------------------------------------------------------------------- --------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 15, 16, 17, 18, 19, 20,21,22,23,24,25,26,27,28,29,30,31,32,33,34 were read on this motion to/for JUDGMENT-SUMMARY
In this action to recover unpaid rent and attorneys' fees under a residential lease,
plaintiff/landlord Thor 560 West 136th Street, LLC, moves, pursuant to CPLR 3212, for
summary judgment against defendant. Defendant opposes.
I. Factual and Procedural Background
This residential landlord-tenant action arises from a dispute between plaintiff, the owner
of a residential building located at 556 West 126th Street, New York, NY 10027, (the building)
and defendant, a former tenant at the building. Defendant took possession of Apartment 3, (the
premises), pursuant to a one-year lease dated May 1, 2018, scheduled to expire on April 30,
2019, with a monthly rate of $2,995.00.
Thereafter, defendant executed a renewal lease for a one-year period beginning May 1,
2019, ending on April 30, 2020, and with a monthly rate of $3,045.00. Prior to the expiration of
the renewal lease, plaintiff emailed defendant several times to inquire whether he would be
renewing his lease for a third term. Defendant did not immediately reply.
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Meanwhile, beginning in January 2020, defendant began experiencing a leak in his
downstairs bathroom. On several occasions, defendant informed the building's superintendent
via text message of the leak, as well as a hole in the ceiling of the same bathroom caused by the
leak.
In March 2020, the COVID-19 pandemic occurred, and New York City began a
lockdown. On April 2, 2020, defendant replied to plaintiffs prior emails, and notified it that he
would not vacate the premises at the expiration of the lease because, due to the pandemic, he had
lost his job and was experiencing financial hardship. Defendant thus occupied the premises until
February 2021. Plaintiff commenced this action on December 3, 2021.
II. Contentions
Plaintiff contends that it is entitled to summary judgment because defendant breached
their lease by failing to pay any rent and additional charges from April 30, 2020 to February 10,
2021. According to plaintiff, defendant owes approximately $31,587.50, accounting for the 10
months spent as a holdover tenant, and a prorated sum from defendant's alleged occupancy in the
premises between February 1 and February 10, 2021.
In opposition, defendant argues that plaintiff breached the warranty of habitability and
partially constructively evicted him from the premises by failing to address conditions in the
premises that were detrimental to his health and safety, and because of this breach, he was
legally entitled to withhold rent. Defendant contends that he experienced a leak containing up to
50 gallons of water per day from a pipe in the lower-level bathroom at the premises, resulting in
a water bug infestation and his inability to use the facility. He also asserts that he had no
cooking gas between July and November 2020 1. Further, defendant asserts that he fully moved
1 While plaintiffs affirmation in opposition states that these dates were between July and November 2021, it seems clear from the evidence that the dates plaintiff lacked gas were between July and November 2020. 160975/2021 THOR 560 WEST 136TH STREET, LLC vs. SANGHVI, PATHIK Page 2 of 6 Motion No. 001
2 of 6 [* 2] [FILED: NEW YORK COUNTY CLERK 12/23/2024 04:39 P~ INDEX NO. 160975/2021 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 12/21/2024
out and surrendered the premises on February 4, 2021, and therefore plaintiff's accounting for
damages is incorrect and raises a question of material fact, and thus summary judgment should
be denied.
III. Legal Conclusions and Analysis
"The proponent of a summary judgment motion must make a prima facie showing of
entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any
material issues of fact from the case" (Winegradv NY Univ. Med Ctr., 64 NY2d 851,853 [1985]
[citations omitted]). "This burden is a heavy one," requiring that the "facts ... be viewed in the
light most favorable to the non-moving party" (Jacobsen v NY City Health & Hasps. Corp., 22
NY3d 824, 833 [2014] [internal quotation marks and citation omitted]). Once met, the burden
shifts to the opposing party, who must establish the existence of a triable issue of fact to defeat
the summary judgment motion (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
The Real Property Law (RPL) provides that every written or oral lease or rental
agreement implies a warranty that the premises "are fit for human habitation and for the uses
reasonably intended by the parties and that the occupants of such premises shall not be subjected
to any conditions which would be dangerous, hazardous or detrimental to their life, health or
safety" (RPL § 235-b; Matter of Solow v Wellner, 86 NY2d 582, 587-588 [1995]). The purpose
ofRPL-235-b is to protect the health and safety of tenants and occupants residing in the premises
(Park W Mgt. Corp. v Mitchell, 47 NY2d 316 [1979]). The warranty of habitability is a device
designed to avoid the hardship which would result from a strict application of the principle of
independent lease covenants, and it effectively conditions the tenant's obligation to pay rent on
the landlord's provision of essential services (id).
160975/2021 THOR 560 WEST 136TH STREET, LLC vs. SANGHVI, PATHIK Page 3 of 6 Motion No. 001
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When tenants stay past the expiration of their lease agreement, landlords "are entitled to
[payment for] use and occupancy for the entire period that no rent was[] paid (Goldman v Segal,
278 AD2d 74 [1st Dept 2000]). However, a breach of the warranty of habitability can be
asserted as an affirmative defense to obtain a refund for rent already paid and as a factor for
abatement for unpaid rent or use and occupancy for which the landlord seeks recovery (Alp
Realty Corp. v Huttick, 160 Misc 2d 76 [App Term, 1st Dept 1994]; see also IOI Cooper St. LLC
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Thor 560 W. 136th St., LLC v Sanghvi 2024 NY Slip Op 34474(U) December 20, 2024 Supreme Court, New York County Docket Number: Index No. 160975/2021 Judge: David B. Cohen 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: NEW YORK COUNTY CLERK 12/23/2024 04:39 P~ INDEX NO. 160975/2021 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 12/21/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DAVID B. COHEN PART 58 Justice ----------------------------------------------------------------- ----------------X INDEX NO. 160975/2021 THOR 560 WEST 136TH STREET, LLC MOTION DATE 12/15/2023 Plaintiff, MOTION SEQ. NO. 001 - V -
PATHIK SANGHVI, DECISION + ORDER ON MOTION Defendant. ------------------------------------------------------------------- --------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 15, 16, 17, 18, 19, 20,21,22,23,24,25,26,27,28,29,30,31,32,33,34 were read on this motion to/for JUDGMENT-SUMMARY
In this action to recover unpaid rent and attorneys' fees under a residential lease,
plaintiff/landlord Thor 560 West 136th Street, LLC, moves, pursuant to CPLR 3212, for
summary judgment against defendant. Defendant opposes.
I. Factual and Procedural Background
This residential landlord-tenant action arises from a dispute between plaintiff, the owner
of a residential building located at 556 West 126th Street, New York, NY 10027, (the building)
and defendant, a former tenant at the building. Defendant took possession of Apartment 3, (the
premises), pursuant to a one-year lease dated May 1, 2018, scheduled to expire on April 30,
2019, with a monthly rate of $2,995.00.
Thereafter, defendant executed a renewal lease for a one-year period beginning May 1,
2019, ending on April 30, 2020, and with a monthly rate of $3,045.00. Prior to the expiration of
the renewal lease, plaintiff emailed defendant several times to inquire whether he would be
renewing his lease for a third term. Defendant did not immediately reply.
160975/2021 THOR 560 WEST 136TH STREET, LLC vs. SANGHVI, PATHIK Page 1 of 6 Motion No. 001
1 of 6 [* 1] [FILED: NEW YORK COUNTY CLERK 12/23/2024 04:39 P~ INDEX NO. 160975/2021 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 12/21/2024
Meanwhile, beginning in January 2020, defendant began experiencing a leak in his
downstairs bathroom. On several occasions, defendant informed the building's superintendent
via text message of the leak, as well as a hole in the ceiling of the same bathroom caused by the
leak.
In March 2020, the COVID-19 pandemic occurred, and New York City began a
lockdown. On April 2, 2020, defendant replied to plaintiffs prior emails, and notified it that he
would not vacate the premises at the expiration of the lease because, due to the pandemic, he had
lost his job and was experiencing financial hardship. Defendant thus occupied the premises until
February 2021. Plaintiff commenced this action on December 3, 2021.
II. Contentions
Plaintiff contends that it is entitled to summary judgment because defendant breached
their lease by failing to pay any rent and additional charges from April 30, 2020 to February 10,
2021. According to plaintiff, defendant owes approximately $31,587.50, accounting for the 10
months spent as a holdover tenant, and a prorated sum from defendant's alleged occupancy in the
premises between February 1 and February 10, 2021.
In opposition, defendant argues that plaintiff breached the warranty of habitability and
partially constructively evicted him from the premises by failing to address conditions in the
premises that were detrimental to his health and safety, and because of this breach, he was
legally entitled to withhold rent. Defendant contends that he experienced a leak containing up to
50 gallons of water per day from a pipe in the lower-level bathroom at the premises, resulting in
a water bug infestation and his inability to use the facility. He also asserts that he had no
cooking gas between July and November 2020 1. Further, defendant asserts that he fully moved
1 While plaintiffs affirmation in opposition states that these dates were between July and November 2021, it seems clear from the evidence that the dates plaintiff lacked gas were between July and November 2020. 160975/2021 THOR 560 WEST 136TH STREET, LLC vs. SANGHVI, PATHIK Page 2 of 6 Motion No. 001
2 of 6 [* 2] [FILED: NEW YORK COUNTY CLERK 12/23/2024 04:39 P~ INDEX NO. 160975/2021 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 12/21/2024
out and surrendered the premises on February 4, 2021, and therefore plaintiff's accounting for
damages is incorrect and raises a question of material fact, and thus summary judgment should
be denied.
III. Legal Conclusions and Analysis
"The proponent of a summary judgment motion must make a prima facie showing of
entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any
material issues of fact from the case" (Winegradv NY Univ. Med Ctr., 64 NY2d 851,853 [1985]
[citations omitted]). "This burden is a heavy one," requiring that the "facts ... be viewed in the
light most favorable to the non-moving party" (Jacobsen v NY City Health & Hasps. Corp., 22
NY3d 824, 833 [2014] [internal quotation marks and citation omitted]). Once met, the burden
shifts to the opposing party, who must establish the existence of a triable issue of fact to defeat
the summary judgment motion (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
The Real Property Law (RPL) provides that every written or oral lease or rental
agreement implies a warranty that the premises "are fit for human habitation and for the uses
reasonably intended by the parties and that the occupants of such premises shall not be subjected
to any conditions which would be dangerous, hazardous or detrimental to their life, health or
safety" (RPL § 235-b; Matter of Solow v Wellner, 86 NY2d 582, 587-588 [1995]). The purpose
ofRPL-235-b is to protect the health and safety of tenants and occupants residing in the premises
(Park W Mgt. Corp. v Mitchell, 47 NY2d 316 [1979]). The warranty of habitability is a device
designed to avoid the hardship which would result from a strict application of the principle of
independent lease covenants, and it effectively conditions the tenant's obligation to pay rent on
the landlord's provision of essential services (id).
160975/2021 THOR 560 WEST 136TH STREET, LLC vs. SANGHVI, PATHIK Page 3 of 6 Motion No. 001
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When tenants stay past the expiration of their lease agreement, landlords "are entitled to
[payment for] use and occupancy for the entire period that no rent was[] paid (Goldman v Segal,
278 AD2d 74 [1st Dept 2000]). However, a breach of the warranty of habitability can be
asserted as an affirmative defense to obtain a refund for rent already paid and as a factor for
abatement for unpaid rent or use and occupancy for which the landlord seeks recovery (Alp
Realty Corp. v Huttick, 160 Misc 2d 76 [App Term, 1st Dept 1994]; see also IOI Cooper St. LLC
v Beckwith, 55 Misc 3d 145(A) [App Term, 1st Dept 2017]).
Accordingly, here, plaintiff is "entitled to use and occupancy [from defendant] for the
entire holdover period, i.e. from the expiration of the last lease through the time the apartment
was finally vacated" (Towne Partners, LLC v RJZM, LLC, 79 AD3d 489 [1st Dept 2010] [citing
501 E. 87th St. Realty Co., LLC v Ole Pa Enterprises Inc., 304 AD2d 310 [1st Dept 2003]).
Because tenants may be entitled to a rent abatement for rent already paid based on a
breach of the warranty of habitability, here, defendant may be entitled to abatement from his rent
paid prior to becoming a holdover tenant (Alp Realty Corp., 160 Misc 2d 76, at 77).
Furthermore, as holdover tenants are occupants protected under RPL 235-b, defendant may be
entitled to abatement towards the amount of use and occupancy owed during his time at the
premises after the expiration of his lease on April 30, 2020. The statute of limitations for a rent
abatement claim arising out of breach of the warranty of habitability is six years, because the
claim is based on a breach of an implied covenant in the contract between the parties, and the
statute of limitations for breach of contract under the CPLR is six years (CPLR 213; Whealon v
Gramercy Park Residence Corp., 214 AD3d 427 [1st Dept 2023]). In determining the amount of
rent owed, the court must measure "the difference between the fair market value of the premises
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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 W Mgt. Corp, 47 NY2d at 329).
However, defendant submits evidence of alleged habitability issues that arose both during
his tenancy and after he became a holdover tenant. Defendant submitted proof that beginning in
February 2020, he informed the building superintendent of an ongoing, serious water leak in his
bathroom, which caused a water bug infestation and prevented him from using the bathroom.
The presence of roaches or other insects in a rental property may be considered a breach of the
warranty of habitability (see City ofNew York v Rodriguez, 117 Misc 2d 986 [App Term, 1st
Dept 1983], citing Park W Mgt. Corp, 47 NY2d at 391). Defendant's assertions regarding the
lack of gas at the premises between July and November 2021 while a holdover tenant may
amount to violations of the warranty of habitability (Berg v Chelsea Hotel Owner, LLC, 203
AD3d 484 [1st Dept 2022]), as holdover occupants who are liable for use and occupancy are
entitled to the same protections as tenants (RPL § 235-b, see Stahl Assoc. LLC v Alexandersson,
66 Misc 3d 1225(A) [Civ Ct 2020], see also Warner v Lyon, 63 Misc 3d 157(A) [App Term
2019]).
Lastly, the parties dispute the amount of time defendant remained in the premises as a
holdover tenant, raising issue an of fact. Defendant asserts he surrendered the premises on
February 4, 2021, and provides a receipt from his moving company as evidence of this departure
date. Plaintiff claims defendant vacated the premises on February 10, 2020, and does not
provide any evidence of when defendant surrendered the keys to the premises.
Thus, plaintiff is entitled to receive use and occupancy from the defendant at the
undisputed last lease rate of $3,045.00 per month for the period from May 1, 2020 through
January 31, 2021, and for a portion of the month of February 2021, the duration of which is
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disputed and shall be determined at trial. As questions of fact remain as to defendant's warranty
of habitability claims, any award to plaintiff for use an occupancy will be subject to any rent
abatement for defendant's warranty of habitability claims, which will determined at trial.
Accordingly, it is hereby
ORDERED that plaintiffs motion for summary judgment is granted to the extent of
finding that plaintiff is entitled to receive use and occupancy from the defendant at the
undisputed last lease rate of $3,045.00 per month for the period from May 1, 2020 through
January 31, 2021, and for a portion of the month of February 2021, the duration of which is
disputed and shall be determined at trial and is otherwise denied; and it is further
ORDERED that the parties appear for a settlement/trial scheduling conference in Room
305, 71 Thomas Street on March 26, 2025, at 10:00 a.m.
12/20/2024 DATE DAVID B. COHEN, J.S.C.
~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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