Posted by Ed Buchet on January 30, 1999 at 23:16:30:
In Reply to: Re: Suing posted by DK on January 30, 1999 at 17:03:21:
Thanks again DK you've been a great help. Does what you're saying mean that I would have to have him served again for each seperate issue. Either way what are the odds of getting awarded anything for a breach of the warranty of habitability after the fact. Do judges ever punish the landlord after the tenant has vacated the apartment of his own will? Or was my only real recourse while I was still living their. So far I haven't been able to find any cases where this is spelled out. Has anyone had a similiar situation resolved?
: Unlike many states, New York does not impose any penalties on a landlord who fails to return a security deposit. All you can do is sue to recover the amount of the deposit. If your lease has a clause which would give the landlord the right to recover legal fees if he sues you because of a lease default (like not paying the rent) then, you have the right to recover your legal fees if you have to sue the landlord. (Real Property Law 234)
: I would raise each of the issues you listed as additional claims which you have against your landlord. The lack of a working oven is a breach of the warranty of habitability. The incident with the dog might be neglience. Spitting is technically assault or battery. Doing his laundry in your apartment without your permission is a trespass.
: : Thanks DK. Still wondering if he's forfeited his rights by not responding sooner. Knowing that could help in settling with him out of court. As for whether there was a breach of warranty of habitability? The last three months we had no oven. I repeatedly contacted him and he said he would get to it but never did. I also noted this on every rent check and have the cancelled checks. I called the city about a lack of heat but they don't come out until after 9am and by that time it was to late to catch. I continued to call about that and also for a constant lack of hot water which he was given a summons for. He left a half dozen roach traps in the middle of my kitchen floor that my dog ate (one of our many battles was about the dog and the fact that he once peed on a bush in front of the building). When we returned home from a vacation one day early we found him in the apartment working and doing his laundry. We had a broken front buzzer for a long time (undocumented). He never painted in the five years although we never asked. We were also forced to evacuate the building because he set off some sort of pesticide dispenser and then went out of town for a few days. I called the cops and they gave me their badge numbers. And last but certainly not least he spit on me and my two year old daughter during an argument between him and me over the fact that he had threatened my six year old with eviction due to my dog digging in some dirt on his property. (I beat him up and we went to mediation over the incident). What do you think?
: : : You are not responsible for any "reasonable wear and tear." For example, one would assume that walls, floors and appliances would have show signs of reasonable wear and tear that are completely normal after years of use.
: : : You can always amend a complaint, but you have not provided any details which would show that you have a right to recover anything above your security deposit. Was there a breach of the warranty of habitability because of the failure to make repairs or to provide required services? Such a claim would give you the right to recover a rent abatement.
: : : : I am suing my former landlord Kevin Gerard of Brooklyn for failing to return my $3600 security deposit. My wife and two kids moved out of the two family house which he also occupies in September of 98. We waited two months for him to tell us what part of the deposit he would return with no response from him. I proceeded to housing court. He was served and we will be in court on the 25th of March. last week he came by and asked if I wanted to settle out of court as it, "Would save all of us alot of time." He said he spent money on repairs. There was wear and tear but not I believe what he'll claim. I took a limited amount of pictures of the apartment as we left it. Has he given up his right to the monies by virtue of time at this point? I also considered ammending the suit to include harassment since there were several events both with myself and my children over the five years that I think warrant it. Is it possible to ammend the original suit?
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