Did Adverse Impact On Service Constitute a Breach of Warranty?

Gene Rosen sued MF Associates of New York LLC and Ogen Cap Properties, LLC for breach of the warranty of habitability at four (4) high rise residential buildings located at 205/215/225 and 235 East 95th Street in Manhattan in a complex known as Normandie Court.

In his amended complaint, Rosen alleged, on behalf of himself and others similarly situated, that MF Associates and Ogden, as owner and manager, respectively, of the Normandie Court buildings, breached the warranty of habitability on rentals/leases in those buildings by depriving tenants of the use of elevators during a modernization project from approximately August of 2014 to July of 2015. Rosen brought the case as a class action on behalf of himself, a former resident of one of the buildings during the time of the elevator outages, as well as as-yet unnamed other residents during that time who suffered from the non-functioning elevators in their buildings. Rosen alleged that, during the modernization project, there were times the residential tenants suffered inadequate, unreliable, and on at least one occasion, no elevator service.

MF Associates and Ogen moved to dismiss the complaint, arguing that Rosen failed to state a valid cause of action for breach of the warranty of habitability because Rosen only generally alleged delays in elevator service caused by the modernization project and otherwise alleged, in conclusory form, a breach of the implied warranty of habitability. In opposition, Rosen argued that he had adequately pled the claim for breach of the warranty of habitability based upon the inadequate elevator service at the Normandie Court buildings.

The test to be applied by the Court was whether the complaint gave sufficient notice of the transactions or occurrences intended to be proved and whether the requisite elements of any cause of action known to law could be discerned from the factual averments.

Section 235-b of the Real Property Law, the implied warranty of habitability statute, provides in pertinent part, that:

In every written or oral lease or rental agreement for residential premises the landlord or lessor shall be deemed to covenant and warrant that the premises so leased or rented and all areas used in connection therewith in common with other tenants or residents 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…

MF Associates and Ogen argued that RPL § 235-b did not apply to the facts alleged by Rosen because the warranty of habitability did not require that premises be maintained in accordance with reasonable expectations of tenants, but rather sets forth minimum standards to protect tenants against conditions that rendered the residential premises uninhabitable. That test was whether or not the defects deprived the tenant of those essential functions which a residence is expected to provide as viewed by the eyes of a reasonable person.

A 1995 decision the Court of Appeals, as follows, actually addressed the issue of whether deprivation of elevator access could constitute a breach of the warranty of habitability pursuant to RPL § 235-b:

[T]he statutory reference to uses reasonably intended by the parties … reflects the Legislature’s concern that tenants be provided with premises suitable for residential habitation, in other words, living quarters having those essential functions which a residence is expected to provide [.]This prong of the warranty therefore protects against conditions that, while they do not render an apartment unsafe or uninhabitable, constitute deficiencies that prevent the premises from serving, their intended function of residential occupation.  [And] operable elevator service is an essential attribute of a high-rise residential apartment building because a reasonable person could find that it is indispensable to the use of the demised premises.

In his amended complaint, Rosen alleged, inter alia, that: each of the Normandie Court buildings was 34 stories and had over 300 apartments, each building had three elevators, but that during the modernization project, one elevator was taken out of service, one of the two remaining elevators would frequently break down, leaving the 34 story building with one working elevator, and, on at least one occasion, all elevators had broken down in one of the buildings. He also alleged that delays were exacerbated during scheduled moves when one elevator would be taken out of service to accommodate the move at the expense of all other elevator users in the building. He further alleged the delays caused by the elevator outages were far more than an inconvenience and referenced an article about the modernization project whose headline referred to tenants concerns that the broken elevators were a safety hazard.

Rosen submitted an affidavit to supplement his pleadings. In the affidavit, he attested that it would typically require a wait in excess of 45 minutes to get an elevator to go downstairs to leave the building in the morning. After waiting 10 to 15 minutes for an elevator, one would arrive, only to be packed full of people, leaving no space for any additional passengers to get on. The wait for an elevator to return to one’s apartment in the evening was a similarly miserable experience, and the elevators frequently broke down leaving passengers trapped inside to wait for help.

After carefully reviewing the complaint, as supplemented by his affidavit, the Court determined that Rosen adequately pled a claim for breach of the implied warranty of habitability, sufficient to survive dismissal at the pleading stage. Whether Rosen’s claim would later survive a motion for summary judgment, or whether he would ultimately prevail on his claim, was not relevant on a pre-discovery motion to dismiss.