Adam Leitman Bailey, P.C. Defends Landlord Against Improper Mold Based Lease Termination
The landlord of a well-maintained building on the Upper East Side retained Adam Leitman Bailey, P.C. to commence a non-payment proceeding against a rent-stabilized tenant who failed to pay rent for several months claiming the rent in arrears was not due and owing because the presence of mold rendered the apartment uninhabitable. In connection therewith, the tenant vacated the apartment prior to the expiration of the term of the lease. The tenant retained counsel who filed an answer to the non-payment petition asserting multiple affirmative defenses, including breach of the warranty of habitability under Real Property Law Section 235-b and constructive eviction. The parties tried to settle the non-payment proceeding but settlement discussions proved to be unfruitful. Prior to trial, the landlord made a motion pursuant to CPLR 3120 (1) (ii) for an order directing the tenant to provide the landlord access to the subject apartment so that the landlord could inspect and photograph the conditions in the tenant’s apartment. Said motion was granted because the tenant refused to provide access to the landlord to inspect the apartment on several occasions. Upon inspection of the apartment, the landlord and a licensed environmental contractor retained by the landlord found that the mold conditions were confined to a bathroom ceiling area caused by the tenants’ ventilation practices. The landlord also took photographs of the conditions during the court-ordered inspection of the apartment. In light of the inspection and photographs, the landlord no longer wanted to settle and requested a trial date. At trial, the tenant testified that the outstanding rent and all future rent were not due and that the tenant’s vacatur from the apartment prior to the expiration of the tenant’s lease was justified in light of the mold conditions. After the tenant concluded his case and testimony, the landlord presented his case, which included expert testimony by the environmental contractor, the photographs taken during the inspection of the apartment, an inspection report showing mold levels within acceptable indoor environmental standards and email correspondence between the landlord and the tenant evidencing the landlord’s repeated efforts to obtain access to the apartment. After the conclusion of the trial, the court found and determined that the landlord did not breach the warranty of habitability as the mold conditions were minor and not pervasive and that the tenant’s unilateral Vacatur from the apartment and attempt to break the lease prior to its expiration was not warranted and not legally justified. Accordingly, the court found in favor of the landlord and awarded the landlord a final judgment of possession and a monetary judgment for all of the outstanding rent arrears and further held that the tenant would be liable for all future rent under the tenant’s lease as well as the landlord’s legal fees as the prevailing party pursuant to the legal fees clause in the tenant’s lease.
Jeffrey Roth represented the landlord in this matter.