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Nightmare on Willow Street

By Massimo F. D'Angelo


When a prominent photojournalist, his wife and baby daughter, the tenants of a pricey Brownstone apartment located in Brooklyn Heights were faced with constant nightmarish conditions in their apartments, they turned to ALBPC for help.

A. The Landlord’s Gross Negligence

Immediately after ALBPC’s clients moved into their unit, they began experiencing horrible conditions.

In fact, on the day that they moved into the building, a gas order was detected and the gas company was called to the property to inspect whether a gas leak existed. The gas company representative personally met ALBPC’s clients at the building and advised them that they were “lucky to be alive.” Notably, during that very same gas leak inspection, the gas company representative pulled out the client’s oven, who lived on the fourth floor, in order to inspect whether any piping was damaged, and specifically pointed out to the landlord’s super that there were several large holes in the wall that could serve as conduits for rodents and insects. Although the tenant asked the super to close up the holes behind his oven, as well as on several subsequent occasions, the super, at all times, failed to close the holes.

In fact, because the landlord failed to repair the holes behind the clients’ stove, the photojournalist was forced to close the holes himself using gaffer tape, a heavy cotton cloth tape with strong adhesive properties, that he used in connection with his professional photography work.

Several months later, the building then began experiencing problems with its HVAC system, which resulted in intermittent lack of heat and hot water for the next four months, for essentially the entire winter season. During this winter period, on several occasions, ALBPC’s clients experienced three to four days consecutively without any heat or hot water.

Although the photojournalist wrote several e-mails to the landlord apprising him of these conditions and demanding that they be remediated, absolutely nothing was done. Since the photojournalist’s daughter was in preschool at this time, these conditions were all the more pressing, but the landlord simply ignored them, which was consistent with how the landlord dealt with hazardous and life threatening conditions within the building throughout the clients’ tenancy.

To make matters worse, the landlord’s principal subsequently sent the building’s residents an e-mail indicating that all of the smoke detectors and carbon monoxide detectors in the units were likely not be functioning properly, and that the tenants should immediately have someone check them. At this point, ALBPC’s clients were quite alarmed to learn that they were living in the unit almost a year without a working smoke or carbon monoxide detector, particularly given that the building had already had one major gas leak.

Then a second gas leak occurred.

As a consequence of the second gas leak, the gas company closed the gas lines, and required the landlord to replace the entire boiler and heating system in the building. Shortly after the second gas leak, a radiator exploded spewing black tar everywhere, which damaged ALBPC’s clients’ personal property.

If this weren’t bad enough, which it was, the apartments, and building generally, were plagued by an insect infestation and the tenants typically observed large cockroaches throughout the property.

Beyond this, the clients could not even sleep most nights because the building’s antique radiators were literally jumping up and down like pistons, making terribly loud clanking sounds.

The landlord’s response was “don’t worry, this is how the heating system works in New York and everything is under control.”

B. The Rat Infestation

Then the calamity reached epic proportions.

Upon his return from a trip to Europe, the photojournalist entered his bedroom and observed several books scattered on the floor next to their bed. As he continued walking into the room, to his horror, he nearly slipped on rat urine and feces that was covering the floor and carpeting in the room. He then walked into the kitchen and noticed many little black pellets and trash all over the kitchen floor. He also noticed excrement in the hallway and living room.

Next, he went into his daughter’s room and upon opening the door, saw that the whole room was literally turned upside down, and observed some movement towards the back of the bedroom on the floor. As soon as he noticed the movement, he immediately became frightened and fled from the apartment, and called the super and landlord.

The landlord sent an exterminator. At the extermination visit, the exterminator’s employee advised that he had never seen rats on the fourth floor of a building before, and that that was “highly unusual.” Virtually all of the photojournalist’s daughter’s things, including her kindergarten artwork and childhood memories were destroyed by the rats.

The exterminator also moved the stove in the kitchen and determined the holes that the photojournalist had explicitly alerted the landlord to over nearly one and half years before, served as the means for the rats to enter into the Apartment. In fact, the gaffer tape that the photojournalist had placed over the holes back had been chomped through by the rats allowing them entry.

During an inspection performed by clients’ experts, the expert found that:

At time of inspection, there were two dead rats being eaten by thousands of maggots. The plumbing contractor stated that they were full size rats when he got there and that all was left was the carcass. I observed three live rats when I turned the light on by the utility room.

There were rodent droppings thru out apartment#2 and #4 and in the attic of the building…

The building management has failed to try to rodent proof the buildings or the apartments.

Clearly, since first learning of the rat infestation, the landlord utterly failed to take any reasonable precautionary measures to halt further infestation, or to properly clean building and apartments to prevent the spread of bacteria or possible infection to residents.

Ultimately, the tenants retained ALBPC to initiate separate lawsuits against their landlord based upon, inter alia, alleged breaches of the warranty of habitability and Landlord’s negligence in failing to maintain the apartments in which they resided.

First, ALBPC brought a lawsuit in the Housing Part asserting various housing maintenance code violations against the Landlord, its principal, and superintendent.

ALBPC started the Housing Court Proceeding in order to force the Landlord, along with its principal and agents to immediately repair the alleged nuisance type conditions within their units through the assessment of fines and penalties. Immediately after ALBPC initiated the Housing Court Proceeding, ALBPC made an application to the Court for an order for a Housing Inspection, which resulted in several violations being placed within the tenants’ units.

Notably, the Housing Court Proceeding was settled in ALBPC’s clients’ favor shortly after it was commenced by a so ordered Stipulation of Settlement which directed the Landlord parties to remediate all defective conditions, and to clean and sanitize the subject unit by on or before shortly after the Stipulation was executed.

Ultimately, in a very short span following its retention, ALBPC was successful in swiftly having substantial penalties lodged against the Landlord for housing maintenance code violations, while at the same time, ensuring the total remediation and sanitation of the tenants’ units.

Simultaneously with litigating the Housing Court Proceeding, ALBPC initiated a plenary action against the Landlord in the New York State Supreme Court, Kings County.

Since the landlord defendants, who were represented by an insurance carrier refused to settle, ALBPC was required to take full blown discovery, including, but not limited to, the taking and defending of depositions, engaging in substantial written discovery and extensive motion practice.

After the completion of discovery, both parties moved for summary judgment, which the Court denied finding that open issues of material fact remained outstanding for resolution at trial. Prior to the trial, the parties engaged in nonbinding mediation with National Arbitration and Mediation (“NAM”) organization. The parties’ mediation was held at NAM’s offices.

At the mediation, the landlord argued that rodent activity was only observed once within the unit, and that this “was New York City where more rats than people exist.” To compound this argument, the landlord argued that prior to retaining ALBPC, the clients had entered into a settlement agreement with the Landlord when some of their property was damaged by a ceiling collapse, whereby the clients fully released the Landlord for any and all damage claims.

During opening statements, ALBPC successfully argued that the release was moot since the landlord made specific representations within the release that the defective conditions within the unit were remediated. Even assuming that the release was deemed to be legally binding, ALBPC argued that the release did not cover the myriad of defective conditions that occurred subsequently to the execution of the release.

Moreover, ALBPC showed all of the photographic and documentary evidence of the nightmarish conditions to the mediator that tenants had to live with, the same evidence that a jury would view during trial. The mediator, who was visibly disgusted by the landlord’s conduct, issued tenants a very large settlement, which reimbursed the tenants for their legal fees, in full, and provided them with additional monetary damages. There are no other reported cases with similar facts alleging warranty of habitability claims for rats which garnered a higher settlement sum or verdict.

ALBPC partners Massimo F. D’Angelo and Dov Treiman litigated the case for tenants.

Adam Leitman Bailey, P.C.

NEW YORK REAL ESTATE ATTORNEYS