Was Tenant Entitled to Abatement of Rent?

Karen Congdon sought $1,149.95 in damages from Jessica Filippi for breach of a month-to month lease. The matter proceeded to trial before the City Court of Little Falls in Herkimer County.

Congdon testified that Filippi left without providing one-month notice as required in the month-to-month lease agreement and sought the unpaid rent for September 2021 as well as damages for mold remediation, locks, smoke alarms, a broken refrigerator drawer, and other damages. Congdon also testified that she expended money on various cleaning products following Filippi’s leaving the apartment.

Congdon called City Codes Officer Philip Green to the stand. Congdon was unfamiliar with how to elicit testimony from a witness, so the Court started the inquiry about why Green was called as a witness. Green testified that he recognized the apartment in the pictures because he does “walk throughs” at the request of local landlords prior to a new tenant taking possession. Green testified that he normally drafted a report in triplicate, but did not bring his own carbon copy report to court because it was illegible. Congdon did not seek to introduce her copy of the report. Green testified that he did not remember the apartment containing mold to the extent that it did in the pictures. Green also testified that the GFCI outlets by the kitchen sink were working and that he did not notice smoke detectors missing. Green did not test the outlets further away from the sink; did not remember if the smoke detectors had batteries, if there were leaks in the ceiling; did not see the steps in the back, and testified that if a tenant had complained of bathroom mold like the kind seen in the pictures, he would tell the tenant it was the tenant’s responsibility to remediate the mold.

Filippi appeared and testified that she had known Congdon for a long time and rented from her following her divorce. Filippi testified she mailed the notice to vacate letter on August 1, 2021, to Congdon’s address on Oregon Road, but did not include the street number because she did not know it. Filippi testified that she has one lung, generally kept the apartment clean, and that cleaning products as well as mold aggravated her respiratory condition. She testified that she did not take the smoke detectors and/or batteries out of the apartment, some of the outlets in the kitchen did not work, the damage to the refrigerator door was an accident, she put a slide lock on the basement door because it would not shut properly, and she complained to Congdon several times about the mold in the bathroom and ceiling leaks which was detrimental to her respiratory health. Filippi testified that she also expended about $200 on drain cleaners and other products but did not provide the Court with any receipts.

Filippi called Jeffrey Alford as a witness. Alford testified that he had known Filippi for approximately 20 years, knew her to be a clean person, had been at the apartment between 10 and 20 times, described the apartment as “squeaky clean,” was never in the bathroom, explained an odor that Filippi said was mold, and did not know Filippi as someone who would steal smoke detectors.

Filippi introduced various pictures and text messages as exhibits.

The Court found that Filippi’s mailing a notice to vacate letter to Congdon without the street number was insufficient service of the notice because it was not reasonably calculated to reach Congdon. By Filippi’s own testimony the parties were friends, so it seemed reasonable that Filippi knew Congdon’s address. Additionally, the extensive text messages between the parties made it clear that had Filippi actually wanted to deliver the letter to Congdon, she could have either inquired via text message as to the house number or taken a picture of the notice to vacate and sent it to Congdon via text message. Therefore, the Court determined that Filippi did not substantially comply with the terms of their lease and owed Congdon for the rent for September 2021.

However, that was not the end of the inquiry. There was conflicting testimony about the damage to the property and the proper allocation of responsibility for remediating that damage. It was unclear who was responsible for the removal and/or damage to the smoke alarms and door locks. In any event, even if the Court were to find for Congdon on that issue, Congdon had the burden of proof and had not proven liability by a preponderance of the evidence on the issue of the smoke alarms and door locks. Even if Congdon proved liability, the Court did not have a receipt for replacement smoke alarms or door locks. With respect to the refrigerator door, Filippi admitted responsibility and Congdon submitted a receipt for $64.95 which substantial justice dictated should be added to Filippi’s liability.

However, that was still not the end of the inquiry. Filippi raised issues about the condition of the property which put the warranty of habitability into issue. New York tenants have protections under the warranty of habitability when they are “subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety.” With respect to the mold, the Court was not bound by the Code Officer’s determination of liability because, while certainly a factor in the measurement of the landlord’s obligation, violation of a housing code or sanitary regulation was not the exclusive determinate of whether there had been a breach. Housing codes do not provide a complete delineation of the landlord’s obligation, but rather serve as a starting point in that determination by establishing minimal standards that all housing must meet. Mold is a breach of the warranty of habitability. Such issues as mold are grounds for a rent abatement. Tenants may also seek reimbursement from the landlord when the tenant expends funds remediating things such as mold, and landlords can avoid liability under warranty of habitability claims by prompt remediation.

In this case, Congdon properly acknowledged her responsibility to remediate the mold as appeared in the text messages between the parties on August 2, 2021. For whatever reason, the mold problem continued until Filippi vacated the premises as could be seen in the pictures admitted into evidence by both parties. The pictures showed a shower that was infested with mold. Both parties testified that they expended personal funds on cleaners and drain products. Neither party presented evidence of professional contractor bills.

Based on the foregoing, the Court found that neither party will be reimbursed for their expenditures on cleaning and/or drain products because they were ordinary and necessary expenses that were normally made by people who own or maintain an apartment. But the Court was concerned with the pervasive mold in the bathroom which still appeared to be present in the pictures even after Congdon cleaned the shower. Even if Filippi had done a better job cleaning, the Court found that the mold was so pervasive that it required a contractor to at least remove and replace the caulk/sealant — an expense properly borne by the landlord, not the tenant. Because the mold was not remediated prior to the tenant’s vacating the premises, the Court found that the mold was a breach of the warranty of habitability and assessed a 25% ($200) rent abatement in favor of Filippi.

Based on the foregoing, the Court found that substantial justice dictated that Filippi owed Congdon $664.95, calculated by finding that the $800 rent owed by Filippi was abated by 25% ($200) for a balance of $600 to which is added $64.95 for the replacement refrigerator drawer for a total of $664.95.