Bugged Tenant Gains Rent Relief

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Bugged Tenant Gains Rent Relief
Elizabeth Stull
New York Law Journal
06-18-2004

A New York Housing Court judge has granted an East Village tenant rent relief because of an infestation of bedbugs.

It is the first such case to reach New York City courts in almost 100 years, according to the decision, but Judge Cyril K. Bedford predicted that it will not be the last.

Nationwide, the country is suffering from a growing bedbug problem.

Bedford predicted an epidemic of suits over the insects in New York City and laid out the factors he considered in granting the abatement. Ludlow Properties, LLC, v. Peter H. Young, Ind. No. L&T 097059/2003.

Ludlow Properties, LLC, had brought a holdover proceeding against the tenant Peter H. Young, seeking $6,550 in unpaid rent for his Ludlow Street apartment. Young posed breach of warranty of habitability as a defense.

He argued that he was unable to enjoy a decent night's sleep because his home was infested with hundreds of the tiny insects.

Judge Bedford found that the apple seed-sized predators created a breach of the warranty of habitability, in spite of the owner's repeated attempts to get rid of them. The judge awarded Young a rent abatement of 45 percent for each of the six months during which he was plagued by the bugs.

According to the decision, Young started noticing hundreds of bite marks on his body in June 2003 and realized what they were a few weeks later. A notice posted in the lobby announced that an exterminator would "perform a special service for the bedbugs" on Aug. 2.

Over the next few months, Young took desperate measures to get a restful night's sleep, the court observed. He threw out his bed with all his bedding and slept on towels on the floor. When this failed he put down plastic sheeting. He tried an inflatable mattress and finally resorted to sleeping on a metal cot, which seemed to stop the biting of bedbugs but which, the court noted, "provided no real comfort."

Young said he regularly spotted the flat-backed, wingless bugs between July and December 2003, and threw out an infested couch, an armoire, a shelf, books, drapes, towels, linens and clothes. He testified that he threw out everything except family heirlooms.

"The exterminator's report indicates that bedbugs are tenacious and adapt very well to their environment and can go a whole year without feeding," Judge Bedford observed in his decision. "They can migrate to other apartments quickly through walls on the interior and exterior. Bedbugs can go from endemic to epidemic if not handled properly".

Even though the exterminator cleaned Young's apartment five times, the judge said there was no evidence of what steps were taken in other parts of the building.

Now that the bedbugs have obtained a foothold in New York City, Judge Bedford predicted an epidemic of cases.

He said that "the condition may not be attributable to a landlord, and that the landlord may attempt multiple exterminations to little or no avail." But he went on, "In this case, the bedbugs did not constitute mere annoyance, but constituted an intolerable condition, notwithstanding the landlord's efforts to exterminate them."

The judge found that an abatement was justified by the implied warranty of habitability under Real Property Law §235-b, which addresses "conditions that materially affect the health and safety of tenants or deficiencies that in the eyes of a reasonable person deprive the tenant of those essential functions which a residence is expected to provide." He cited Sollow v. Wellner, 86 NY2d 582 quoting Park W. Mgt. Corp. v. Mitchell, 47 NY2d 316.

ABATEMENT AMOUNT

The judge arrived at a 45 percent abatement by considering factors that included the severity of the infestation and the lack of evidence that the landlord attempted to eradicate the insects on a buildingwide scale. He awarded $2,767.50, for July 1 through Dec. 31, 2003.

As there was no testimony that any of the insects were present in the apartment after December 2003, Bedford wrote, "Presumably the multiple exterminations have finally turned the tide, and hopefully rendered the Premises bedbug free."

"There are two huge new health problems for residential apartments in New York City right now," said attorney Steven DeCastro, who represented Young. "No. 1, mold. No. 2, bedbugs. Both of them need to be addressed."

The only cases to address bedbugs in New York City come from the early 1900s and predate the warranty of habitability, the decision said. Those cases turn on whether the severity of the infestation constituted constructive eviction.

RISING INFESTATIONS

U.S. bedbug infestations are reportedly on the rise. A survey by Pest Control Technology magazine found a 19 percent increase in bedbug service calls nationally between summer 2003 and winter 2004.

Last year, the 7th U.S. Circuit Court of Appeals upheld punitive damages of $382,000 after two guests were attacked by the insects in a Chicago Red Roof Inn. Mathias v. Accor Economy Lodging, 03-1010, 03-1078 (Oct. 21, 2003).

Apparently the tiny bloodsuckers do not transmit disease, but the bites create itchy red scabs.

Recent articles in National Geographic and the Daily News suggest New York City is already a hotbed of activity for the mite-sized parasites.

"My feeling is that bedbugs are brought in by other tenants," said attorney Robert Ehrlich, who represented the landlord in Ludlow. "Bedbugs are a unique thing. They're different from mice, roaches, and the burden shouldn't be put on the landlord to remove them."

Ehrlich said he and his client had not determined whether to appeal the decision.