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Bender v. Green

March 2, 2009


The opinion of the court was delivered by: Sabrina B. Kraus, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Official Reports.


In this summary nonpayment proceeding, IRVING & NEIL BENDER as Executors of the ESTATE OF WILLIAM GOTTLIEB, and 220-2 WEST 10th STREET, LLC, (collectively Petitioners) seek to recover possession of Apartment 3B, at220 West 10th Street (Subject Premises) based on the allegation that, GEOFFREY GREEN and DANNA SHAPIRO s/h/a D. Shapiro (collectively Respondents) the rent-stabilized tenants of record, have failed to pay rent for the Subject Premises.


The rent demand was issued on or about January 5, 2007 seeking $7,099.76 in rent for the period of October 2005 through January 2007. On or about January 22, 2007 a notice of petition and petition were issued for $4228.42 alleged remaining due since the service of the demand. On or about January 31, 2007, Respondents appeared herein by counsel and filed a written answer and counterclaims. The primary claim asserted by Respondents is that they were not obligated to pay the full rent for the period, due to an infestation of bedbugs in the Subject Premises.

Immediately prior to this proceeding, another non-payment proceeding had been pending between the parties, under Index No. 101422/06 which was discontinued, pursuant to a stipulation dated January 30, 2007. Both parties were represented by the same attorneys in both proceedings.

Pursuant to a stipulation dated March 6, 2007, and April 30, 2007, Respondents withdrew the affirmative defense asserted in paragraph two of their answer, waived claims regarding traverse, and consented to the jurisdiction of the court.

The matter was assigned to Part S for trial on July 22, 2008, before the Honorable Peter Wendt. Based on an issue that arose during the presentation of Petitioners' prima facie case, the proceeding was marked off calendar by the Court. The Court provided that Petitioners had sixty days to move to restore the proceeding, or face dismissal.

On or about October 14, 2008, Respondents moved for an order to restoring the proceeding on their counterclaims and request for attorneys fees, and deeming the underlying proceeding dismissed, as per Judge Wendt's July 22, 2008 order. Petitioners cross-moved for an order restoring the proceeding for trial.*fn1On November 17, 2008 this Court issued an order on the motions, excusing Petitioner's tardiness in moving to restore as de minimis, andscheduling a trial de novo on January 13, 2009.

The trial took place on January 13 and 14, 2009.


Petitioners established their prima facie case at trial. Petitioners entered into evidence a deed between William Gottlieb and 220-2 West 10th Street LLC . The deed is dated September 30, 1997 and is for the premises known as 220-222 West 10th Street, New York, New York. Petitioners entered into evidence a certified copy of the multiple dwelling registration dated October 29, 2008, showing that the premises are registered with HPD. Petitioners established that the legal registered rent for the Subject Premises is $1435.67, and that it had been registered with DHCR.

Respondents took occupancy of the Subject Premises pursuant to a written lease agreement dated April 1, 2004, and most recently renewed on December 15, 2005 for a one year period through and including March 31, 2007.

The parties stipulated, at trial, that through January 2009 there were five months rent outstanding. Two months at $1397.25 per month, and three months at $1435.67 per month. January 2009 rent was paid and accepted prior to the conclusion of the trial without prejudice. Thus, as of the conclusion of the trial, it was stipulated that there was unpaid rent totaling $5,665.84.

Testimony of Geoffrey Green

Mr. Green has resided in the Subject Premises since April 2004. Immediately prior to moving into the Subject Premises, Respondents lived in Apartment 4A at 222 West 10th Street, New York, New York, an adjacent building owned by the same landlord. Respondents had a bedbug infestation, when they lived in their former apartment, and they were familiar with the indications of bedbugs when they began to appear in the Subject Premises.

Respondents began having a problem with bedbugs in the Subject Premises on or about April 2005. Respondents started waking up with welts that were like insect bites. Mr. Green called management, and was provided with the number of an exterminator that Petitioners kept on retainer. Mr. Green called Robert Rinaldi, from Careful Exterminating (Exterminator), who came and treated the bedroom in the Subject Premises.

Respondents washed all of their clothing, sealed every crack and crevice in their bedroom, vacated the bedroom and began sleeping in the kitchen and living room. Respondents replaced portions of their wooden bed, had their mattress encased in plastic, and put their clothing in sealed bins. Respondents began changing their linens frequently, sometimes daily, and also vacuumed daily. Mr. Green put a notice in the lobby of the building notifying other tenants of the presence of bedbugs.

The frequency of bites experienced by Respondents, increased after the initial treatment by the Exterminator. Throughout the summer of 2005, Mr. Green had welts on a daily basis, all over his back, legs, arms, and sometimes on his face.

Mr. Green called Petitioners' office once or twice a month, and Petitioners continued to refer him to the Exterminator. At no point did Respondents consult with or hire their own exterminator. Ms. Shapiro stated that she had considered hiring her own exterminator, but decided against it because she knew other tenants who had hired their own exterminators and still had bedbugs.

In 2006, Mr. Green remained in touch with Petitioners on a monthly basis and had a standing appointment with the Exterminator. At one point Respondents were provided with ...

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