Victim of 'Minimal' Mold Wins Full Rent Abatement

[Guest guest]

Victim of 'Minimal' Mold Wins Full Rent Abatement

Mark Fass

New York Law Journal

09-06-2005

http://www.law.com/jsp/article.jsp?id=1125651920129 & rss=newswire

A woman sickened by the " minimal " mold growth found in her

apartment -- as opposed to the " full blown active mold growth " that

predominates the case law -- has been awarded a full rent abatement

for the period she was constructively evicted from her Manhattan

apartment.

" Courts have long recognized dust as a condition which results in a

violation of the warranty of habitability, " Housing Court

Supervising Judge Ernest Cavallo of Manhattan wrote in 360 West 51st

Street v. Cornell, 106494/03. " The [landlord] suggests that the

Court should not award any abatement because [the tenant's] reaction

was unique, not that of an 'ordinary tenant.' The Court asked for

cases to support that position and the attorneys for [the landlord]

provided none on point. "

Cavallo awarded the tenant, Cornell, 6.2 months rent, a total

of $17,050. Her personal injury case against the building's owner,

360 West 51st Street Realty, remains ongoing in Manhattan Supreme

Court.

The landlord initiated the nonpayment proceeding seeking unpaid rent

from November 2003 through April 2004, when the parties agreed to

terminate the lease.

Cornell's answer raised the affirmative defenses of constructive

eviction and violation of the warranty of habitability. She

counterclaimed on the same grounds, seeking $25,000.

Cavallo did not rule on the counterclaim, holding that Cornell may

seek damages in her Supreme Court action.

Cornell moved into the four-bedroom apartment on 51st Street, which

she usually shared with a roommate, in 1997, according to the

decision. Under her most recent lease, which commenced in July 2003,

monthly rent totalled $2,750.

Four months after she signed the lease extension, Cornell began

withholding rent, claiming dust and mold made the apartment

uninhabitable. She suffered from a rash, fatigue, headaches and

shortness of breath.

In October 2003, the building's new owners began renovations in the

basement. The day contractors removed old furniture and an unused

oil tank, Cornell experienced dizziness, another rash, swollen eyes

and " a metallic taste in her mouth, " among other things, according

to the decision.

" Cornell testified that she moved in with a friend and never slept

another night in her apartment, " Cavallo wrote.

On three occasions -- after trips back to her apartment to pick up

belongings or meet with city inspectors -- Cornell's problems became

so bad that she went to an emergency room for treatment, she told

the court.

" At the time of trial she was better but still did not have her

previous stamina or energy, " Cavallo wrote. " She described a life in

limbo. "

Cornell's attorney, Beatrice Lesser of Gallet Dreyer & Berkey,

called four environmental scientists and a physician to testify as

to the pollution and its effects.

The landlord countered with numerous theories, including that the

apartment had a normal amount of mold and that Cornell's symptoms

were the product of anemia, not allergic reactions.

Under New York's Real Property Law and subsequent case law, a

landlord's duty to keep a residence free of dangerous conditions

is " coextensive and interdependent with the duty to pay rent, "

Cavallo wrote, citing Fourth Federal Savings Bank v. 32-33 Owners

Corp., 236 AD2d 300. " When a landlord has been found to have

breached this covenant the tenant may be eligible for an abatement

of his rent. "

NEITHER SIDE CONVINCING

He added that neither side presented a wholly convincing case.

" There are troubling aspects of each claim and theory advanced by

each party, " the judge wrote.

Cornell's experts, for example, failed to explain " which spore was

the culprit, which particulate triggered the reaction or which

combination resulted in the symptoms. "

The landlord, on the other hand, failed to explain why a tenant who

had just renewed her lease and always paid on time would leave her

belongings and move out if she was not ill.

The key to his decision, the judge wrote, was the testimony of

Cornell, a disc jockey and producer.

" Ms. Cornell presented a portrait of a happy life, excellent health,

a lot of physical activity in the gym and on her bicycle, an avid

interest in music with aspirations to turn her hobby into a career,

a beautiful apartment tastefully decorated, a series of congenial

roommates and then poof, a cloud of dust and spores arose from the

basement and ruined it all, " Cavallo stated.

After noting that the landlord failed to find case law to support

its claim that the court should not award any abatement

because " Cornell's reaction was unique, " Cavallo held in favor of

Cornell.

" She has shown by a preponderance of the evidence that a combination

of metallic dust and fungi existed in her apartment, that petitioner

caused or created the conditions by its acts in the basement, that

the condition affected her health and that she abandoned the

premises as a result of petitioner's act and omission, " Cavallo

held.

Cornell's attorney, Lesser, said the decision made an important

distinction in a quickly growing legal area.

" This case looked more on the effect on the inhabitant [than] the

level of mold, " she said. The " case is important because it upheld

the tenants claim that the warranty of habitability had been

violated when she could not live in the building after her mold

exposure. "

D. Migdal of Landman Corsi Ballaine & Ford represented 360

West 51st Street. She could not be reached to comment.