SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS New York Supreme and/or Appellate Courts
September 19, 2012
AISHA M. GAWAD,
Appeals from judgments of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered December 15, 2010.
Gawad v Aviad
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on September 19, 2012
PRESENT: WESTON, J.P., RIOS and SOLOMON, JJ
The judgments, after a joint non-jury trial of two small claims actions, respectively, awarded plaintiff Aisha M. Gawad the principal sum of $1,986.78 and dismissed defendant's counterclaim against her, and awarded plaintiff Natalia Ospina the principal sum of $2,234 and dismissed defendant's counterclaim against her.
ORDERED that, on the court's own motion, the appeals are consolidated for purposes of disposition; and it is further,
ORDERED that the judgment in favor of plaintiff Aisha M. Gawad is modified by reducing the amount of the award to the principal sum of $625; as so modified, the judgment is affirmed, without costs; and it is further,
ORDERED that the judgment in favor of plaintiff Natalia Ospina is modified by reducing the amount of the award to the principal sum of $625; as so modified, the judgment is affirmed, without costs.
In separate small claims actions, Aisha M. Gawad and Natalia Ospina (collectively, plaintiffs), who were roommates in an apartment that they rented in a multiple dwelling owned by defendant, seek to recover for, among other things, damage to their property arising from a bedbug condition in the apartment, and the return of their security deposits. Defendant counterclaims, in both actions, for, among other things, unpaid rent. After a joint non-jury trial of the two actions, plaintiff Gawad was awarded the principal sum of $1,986.78 and plaintiff Ospina was awarded the principal sum of $2,234, and defendant's counterclaims were dismissed.
In our view, there was ample evidence introduced at the trial to
establish the existence of a bedbug condition in the apartment, and
that this condition rendered the apartment uninhabitable as of May 23,
2010 and constructively evicted plaintiffs therefrom. Thus, plaintiffs
are not liable for the rent accruing beginning with June 1, 2010 (see
2 Dolan, Rasch's Landlord and Tenant -- Summary Proceedings §§ 28:74,
28:75, at 382-383 [4th ed]), and they are each entitled to the return
of their respective $625 security deposits. However, plaintiffs are
not entitled to recover, as damages for a breach of the warranty of
habitability (see e.g. Park W. Mgt. Corp. v Mitchell, 47 NY2d 316
; Newkirk v Scala, 90 AD3d 1257 ), the rent that they paid
for the last nine days of May 2010, as defendant was not notified of
the bedbug condition until May 23, 2010, and a landlord must be
allowed a reasonable amount of time to correct a condition. In
addition, plaintiffs are not entitled to recover any damages for
breach of the duty owed pursuant to the Multiple Dwelling Law, as
plaintiffs did not introduce competent proof to establish that
defendant had been on notice before May 23, 2010 of the bedbug
condition (see Smith v Costco Wholesale Corp., 50 AD3d 499 ;
Joseph v Apartment Mgt. Assoc., LLC, 30 Misc 3d 142[A], 2011 NY Slip
Op 50303[U] [App Term, 2d, 11th
& 13th Jud Dists 2012]). Finally, no basis was shown for an award to plaintiffs of the utility charges they had incurred after May 23, 2010. Consequently,
we find that substantial justice between the parties (CCA 1804, 1807) requires that the award to each plaintiff be reduced to the principal sum of $625, and we modify the
Weston, J.P., Rios and Solomon, JJ., concur.
Decision Date: September 19, 2012
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