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Bed bugs

Postby TenantNet » Fri Sep 26, 2008 7:42 am

Bedbugs Emerge as New Area of Housing Law
By E.B. Solomont, Staff Reporter
New York Sun
September 26, 2008

Lawyers who visited Brooklyn housing court were abuzz recently, when bed bugs were reportedly spotted inside a courtroom on Livingston Street.

A spokeswoman for the courts insists the courts are insect-free, but the claim came as attorneys for landlords and tenants said bed bug disputes are filling the docket in New York City courts. At stake are thousands of dollars, including the cost of extermination, destroyed property, and rent for infested apartments. The cases are also setting new precedents in the emerging field of beg-bug law.

"To be honest, up until a year ago, I never even heard of a bed bug or knew about them. I never came across it," a real estate attorney, Martin Heistein, said.

According to the Department of Housing Preservation and Development, which keeps track of complaints about bed bugs and issues violations against property owners who fail to exterminate them, there were 8,830 bed bug complaints in fiscal year 2008, which ended June 30, up from 1,839 in 2005. This year, the department issued 2,757 bed bug violations, up from 366 in 2005.

In New York City, landlords are responsible for getting rid of bed bugs in infested buildings and units and they must pay for extermination.

This was not always the case, but a turning point was a 2004 case, Ludlow Properties, LLC, vs. Young, in which Judge Cyril Bedford sided with a tenant who refused to pay rent for six months because of a persistent bed bug problem.

"Although bedbug are classified as vermin, they are unlike the more common situation of vermin such as mice and roaches, which, although offensive, do not have the effect on one's life as bedbugs do, feeding upon one's blood in hoards nightly turning what is supposed to be bed rest or sleep into a hellish experience," Judge Bedford wrote.

A lawyer at Shafer Glazer, LLP, Timothy Wenk, said the Bedford decision has rippled through the legal community. He said the case reversed a long-standing decision in a 1908 case, Jacobs v. Morand, which held that tenants must pay rent regardless of vermin infestation.

Now, Mr. Wenk said, "The tenants are winning the landlord-tenant cases." He pointed to another recent case, Mathias v. Accor Economy Lodging, Inc., in which a Chicago judge awarded $362,000 to a brother and sister who were bitten by bed bugs while staying at a motel. "The brother and sister really hit pay dirt and got pay dirt," said Mr. Wenk, who called it "the mother of all bed bug cases."

One reason why bed bug disputes are landing in court is because it is hard to prove where the bugs originated. While some landlords have accused their tenants of bringing bed bugs into the building, tenants have reported bed bug infestations that spread to their homes from neighboring apartments.

"It gets back to the issue of responsibility," an attorney for tenants, Ronald Languedoc, said. Mr. Languedoc, who is an associate at the firm Himmelstein McConnell Gribben Donoghue & Joseph, said he has heard of cases where landlords asserted claims against their tenants, but he said he could not imagine how to prove that was the case. "In law, the party that asserts a claim usually has a burden of proof," he said. "I think it is probably hard to track down where, precisely, they came from and how they got in there."

One attorney, Steven Wagner, said he is currently handling a case for a client on the Upper West Side who moved out of his new apartment within 60 days because of bed bugs. The client, who was renting a three-bedroom apartment on West 92nd Street for $7,000 a month, learned shortly after moving in that apartments on adjacent floors were infested with bed bugs. Mr. Wagner said his client's landlord assured him that there would be no problem, but then the client's son was bitten in the middle of the night.

"My client feels as if they had been defrauded into even signing this lease," Mr. Wagner said. "Had they known there were bed bugs in the building, they never would have signed the lease."

Mr. Wagner said bed bug cases were unlikely to yield huge rewards, but litigation is a way to minimize losses. "If people sign a one to two year lease at these kinds of rents, and then their children start getting bitten, they're angry," he said. "In these cases, people feel they have no choice."

He speculated that bed bug cases could have a ripple effect in the real estate market. "I wonder if this is a new way of getting rid of tenants who are regulated," he said.

He also predicted new case law would emerge from a growing area of litigation. "I don't know how bad the bed bug epidemic is, but I can tell you it is non-discriminatory," he said. "There are going to be people who are spending a lot of money and can litigate these issues."
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New York Lags in Regulating Bed Bugs

Postby TenantNet » Mon Sep 29, 2008 1:57 am

New York Lags in Regulating Bed Bugs
By E.B. SOLOMONT, Staff Reporter of the Sun
September 29, 2008
http://www.nysun.com/new-york/new-york- ... ugs/86754/

In response to a growing bed bug epidemic, a number of cities across the nation have adopted new measures to identify and eradicate bed bug infestations ­ and others, including New York, are exploring such moves.

In Boston and in San Francisco, regulations imposed in the past few years outline strict protocols for exterminating bed bugs and for disposing of infested mattresses and belongings.

"I do not think New Yorkers have a place to go now," a City Council member who has been a vocal proponent of stricter bed bug regulations, Gale Brewer, said. Ms. Brewer, who has called for legislation governing the sale of used mattresses, last month sent a letter to the mayor's office requesting a meeting of the agencies tasked with bed bug-related issues, including housing and health and mental hygiene.

"I do think the mayor's office, led by the health department, should be coordinating these agencies," she said in an interview, in which she called for a bed bug task force that would meet regularly and would lead a response to the city's bed bug problem.

In San Francisco, bed bugs are considered a "public health nuisance" and in 2007, the city's Department of Public Health published guidelines for controlling infestations. Under the guidelines, residents are discouraged from placing contaminated items on the curb without sealing the items in plastic and marking them as infested.

Regulations also require property managers to respond to bed bug complaints within 48 hours and to execute a plan of action within 72 hours. Exterminators are instructed to apply pesticide no fewer than three times ­ or at least once every two weeks, three times in a row.

Failure to comply with the rules carries a fine of up to $1,000 or up to five days in jail, according to the author of the guidelines, Johnson Ojo, who is a principal health inspector for San Francisco's health department. Mr. Ojo said the rules were established to address an increase in bed bug complaints. Mr. Ojo said that in 2006, when the rules were put into effect, the department received 308 bed bug complaints, up from 24 in 2003. "We wanted to address the needs of our citizens without ignoring the problems that they wanted to see the officials address," he said.

In Boston, a bed bug sighting warrants a visit from the city's Inspection Services Department, which documents the problem. The property manager or owner then has to file an integrated pest management plan for dealing with the problem, and inspectors follow up until the case is closed.

Owners also must "treat all horizontally and vertically adjacent units," according to the Inspectional Services Department, and those disposing of infested mattresses, clothing, or other belongings must use bright orange stickers to identify the infested items.

In New York City, the lack of similar regulation so far stems from a disagreement over which city agency should handle bed bugs, according to some critics, including Ms. Brewer.

In most cases, the Department of Housing Preservation and Development responds to complaints about bed bugs. The health department does not, since bed bugs are not known to transmit disease.

But Ms. Brewer said the health and mental hygiene department is ignoring the anxiety and mental health issues experienced by individuals whose homes are infested. "They will not take responsibility on the health front, period, end of discussion," she said. "I'm told by the Commissioner of Health, 'Gale, bed bugs don't create any illness,'" she said. "They refuse to believe there is any physical harm from bed bugs."

A spokeswoman for the Department of Health and Mental Hygiene, Jessica Scaperotti, said agency officials know that bed bug infestations can be unpleasant and stressful, and she said the health department has focused on education and prevention through its fact sheet on bed bugs. Since the beginning of 2006, the health department has distributed 60,000 fact sheets in English and Spanish. "While bed bugs are a nuisance, they do not present a health risk, and they do not spread disease," she said.
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Postby TenantNet » Tue Sep 30, 2008 1:17 am

Bed Bug Boom Is a Boost To One Sector
By E.B. SOLOMONT
New York Sun
September 30, 2008

The bedbug boom has brought many people pain, but it does have at least one upside: Exterminators are profiting.

The president of PestAway, Jeffrey Eisenberg, who has a loyal following on the Upper West Side, said he receives between 600 and 700 bedbug calls each week, up from about a dozen calls each month five years ago.

The former accountant, who launched his business from his Upper West Side apartment in 1991, now has 30 employees and while he refused to discuss profit margins, he said revenues are "in the millions."

About a year and a half ago, Mr. Eisenberg, who lives on Long Island, founded a charitable foundation, the Tikkun Olam Foundation, which serves as a clearinghouse for philanthropic donations. Mr. Eisenberg said the foundation has distributed funds in the "six-figure" range over the past year, supporting a program to help widowed Jewish women and an orphanage in Israel. "I was always motivated by charity," Mr. Eisenberg said. "That's why I wanted to become successful."

Part of his success stems from the service he provides, and he said his cell phone is always on. "We're not coming out at 2 a.m.," he said. "Sometimes, you know, its just calming people down."

In part, the bedbug business is driven by fear. "Fifty percent of what I do is therapy," Mr. Eisenberg said. "People feel hopeless and in complete despair."

While it is nearly impossible to prevent the spread of bedbugs, some pesticides and disinfectants ­ such as Sterifab, Bedlam, and Pronto ­ are advertised as bedbug treatments. The owner of H. Brickman & Sons hardware store in the East Village, Paul Brickman, said he started carrying Bedlam last year, and while he regularly sells out of the stuff, he joked that he never gets too close to customers looking to buy a can. "People come in and ask for this and we take a step back," he said.

Earlier this year, a bedding company, London Luxury, came out with "soft and luxurious" mattress and pillow protectors designed to help in bedbug infestations. The line can be found in Bed Bath & Beyond stores, with prices ranging between $19.99 and $119.99.

Similar products can cost big bucks. For one New Jersey-based company, Cooper Pest Solutions, virtually no business came from bedbugs in 2004. Now, bedbugs account for a quarter of revenue, according to its technical director, Rick Cooper, whose father founded the company in 1955. "It's doing well and it's growing," he said.

Last year, the company launched a Web site, bedbugcentral.com, featuring an online store that carries disinfectants and anti-bedbug products, including a plastic mattress cover. Mr. Cooper said he earns $20,000 in sales each month from the site, and he projected $1 million in sales within the year.

In general, exterminators recommend a variety of techniques for eradicating bedbugs, including steaming the bugs out of mattresses and furniture, washing and drying clothing that may have bugs on it, and using pesticide. Few exterminators said the process is quick.

"When it comes to bedbugs, we're going to be in your house, for the first treatment, anywhere between two and six hours," the owner of Freedom Pest, Cesar Soto DeLeon, said. Mr. DeLeon, who has been in business for several years, also uses a bedbug-sniffing dog, Tre, to root out insects. The 2-year-old beagle was certified by the National Entomology Scent Detecting Canine Association, he said.

Mr. DeLeon said for bedbug cases, he charges about $450 for a studio apartment and $900 for a two-bedroom, compared to charges of $75 to $150 for a "basic roach job."

He also charges $250 an hour for Tre's services. "The moment we walk into the location and I give a command, it's like a transformer. He'll go to work," Mr. DeLeon said.

A client of Mr. Eisenberg's, Elizabeth Podniesinski, said eradicating the bedbugs from her three-bedroom apartment cost $10,000. Ultimately, she said she threw out her bed, a leather armchair, her son's crib, and some clothing.

While her home is now free of bugs, she has exterminators visit her apartment every three months to put limestone powder in the cracks of her floors to keep bedbugs at bay.

"I still live in minor amounts of fear," she said. "You think, 'Oh my God, I can't wait to get rid of them.' But no, then you're afraid to get them back."
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Postby TenantNet » Sat Aug 15, 2009 11:39 am

Dealing with Bedbugs
by Richard Siegler and Eva Talel
New York Law Journal
November 5, 2008

Bedbugs are making a major resurgence in the United States. Through June 19, 2008, 8,840 bedbug complaints were filed with the New York City Department of Housing Preservation and Development (HPD) by rental tenants, compared with 6,889 in all of 2007, an increase estimated at 28.3 percent. HPD issued 2,757 bedbug violations in 2008, up from 2,008 in 2007, or an estimated increase of 37.3 percent.[1] Managers of co-op and condominium buildings report similar trends.[2]

After World War II, liberal use of the pesticide DDT nearly eradicated bedbugs in the United States. Their resurgence is attributed to increased international travel; restrictions on the use of DDT; and the difficulty in eradicating bedbugs. They are minuscule, hide in cracks, crevices and inside mattresses and pillows and go easily undetected. While there is a common misconception that bedbugs are attracted by unsanitary conditions, their sole objective is finding a feeding source—human blood. Although bedbug bites do not spread disease and are not fatal, they leave itchy red lesions on the skin and their nocturnal feeding habits are traumatic for victims.[3]

Bedbugs present a challenge for co-op and condominium boards: is the apartment owner or the board responsible for eradicating an infestation? This column addresses this novel issue and discusses cases in New York and other states dealing with damage to persons and property from bedbug infestations. This column also provides guidance to boards and managers in dealing with bedbug infestations in co-op and condominium buildings.

Proprietary Lease

The touchstone for board and shareholder responsibility in a co-op is the proprietary lease. Generally, tenant-shareholders are responsible for keeping the apartment interior in good repair while the co-op/lessor is responsible for keeping the building in good repair. Therefore, an apartment owner should be responsible for remediating a bedbug infestation within the apartment. However, where multiple apartments are infested and it is difficult to identify the source, the infestation may become a board responsibility. Further, even where only a single apartment is infested, the protections afforded residential tenants by the warranty of habitability may obligate the board to remediate, unless the shareholder’s personal property is demonstrably the source of infestation.

Warranty of Habitability

The warranty of habitability, codified in New York Real Property Law (RPL) §235-b, implies a nonwaiveable warranty in every residential lease that the apartment is fit for human habitation and free of dangerous conditions detrimental to the health, life, or safety of its occupants.[4] However, the warranty applies only to rental and co-op apartments—occupancies governed by a lease or lease equivalent—not condominiums.[5] Co-op apartment ownership includes a proprietary lease; condominium unit owners receive a deed.

New York courts have granted tenants rent abatements for breach of the warranty for unremediated roach and mice infestations.[6] Although we have found no New York case law addressing the warranty and bedbugs in co-op apartments, courts have held landlords responsible for bedbug infestations in rental apartments and hotels.

In one of New York’s first bedbug cases, Streep v. Simpson,[7] the landlord sued to recover rent from a tenant who abandoned an apartment, claiming a bedbug infestation. The landlord had hired an exterminator to remedy an infestation in the apartment below, but the infestation spread to defendant’s apartment. Although Streep was decided before the warranty of habitability was codified, the court held the tenant was not obligated to pay rent because the infestation constituted a constructive eviction.

In a 2004 case involving bedbugs and the warranty of habitability, Ludlow Properties, LLC v. Young,[8] the court awarded a 45 percent rent abatement, holding that bedbugs are markedly worse than mice and roach infestations and constitute an intolerable condition, notwithstanding the landlord’s effort to exterminate them. In Jefferson House Associates LLC. v. Boyle,[9] the court found a breach of the warranty and granted a rent abatement equal to the unpaid rent where a bedbug infestation plagued a rental tenant for almost two years.

Because courts have applied the warranty of habitability to rental tenants with bedbug infestations, it is likely they would reach the same result in co-op cases. Further, attorney’s fees are recoverable where the judgment for breach of the warranty is substantially favorable to a tenant and, conversely, a co-op can recover fees if the warranty claim is denied or ruled insubstantial.[10]

However, courts should not find a breach of the warranty if the bedbug infestation is limited to one apartment and the tenant or shareholder brought the bedbugs into the apartment. RPL §235-b(1)[11] provides that if the condition at issue is caused by the tenant, the warranty is not breached. Therefore, if a co-op can dispositively show that the infestation originated from the shareholder’s actions, no liability should be imposed.

Punitive Damages

In a 2008 case,[12] a mother and daughter sued for personal injuries sustained when they were bitten by bedbugs in a New York City hotel. Plaintiffs did not argue that the warranty of habitability was violated, but instead alleged negligence. The court denied defendant hotel’s motion to dismiss the complaint, finding that material issues of fact regarding the hotel's constructive notice of bedbug infestation in other hotel rooms precluded a summary determination. However, the court summarily dismissed plaintiffs’ punitive damage claim, holding that defendant’s actions did not rise to the level of recklessness because it had contracted with a pest control specialist to remediate all vermin.

However, in a 2003 Illinois case, Mathias v. Accor Economy Lodging Inc.,[13] a federal appellate court upheld a jury verdict against a hotel for $5,000 in compensatory and $186,000 in punitive damages. The court held the hotel was grossly negligent in repeatedly failing to address the known presence of bedbugs, as a result of which plaintiffs sustained personal injury.

Condominiums

That the warranty of habitability does not apply to condominiums should not preclude unit owners from obtaining relief for bedbug infestation. The New York City Housing Maintenance Code (HMC) sets minimum standards for health and safety in residences and provides that “[w]hen any premises is subject to infestation by rodents or insects…the owner or occupant in control shall apply continuous eradication methods.”[14] In Gazdo Properties Corp. v. Lava et al.,[15] the court held that HMC violations must be corrected by the unit owner, not the board of managers. However, in Smith v. Parkchester North Condominium,[16] a unit owner whose apartment had water leaks sued the condominium for violating the HMC. The court held that because the leaks entered the unit through common elements, remediating the leak was the condominium’s responsibility. Further, where a board violates its bylaw repair obligations and its actions are deemed so egregious that they may not be protected by the business judgment rule, the condominium can incur liability for failing to remediate.[17]

Like a co-op building, if multiple condominium units are infested or the infestation originates in a common element, the board should be responsible for eradication. However, unlike a co-op building, if the infestation is limited to a single condominium unit, eradication is the responsibility of the unit owner because the warranty of habitability imposes no duty on the board of managers to remediate.

Nonetheless, the modern practice is for condominium buildings to take responsibility for extermination of infestations, and with good reason. First, if unit owners are responsible for extermination, they will likely shop around and each may use a different extermination service; this may result in different remediation outcomes. Further, inappropriate extermination techniques, such as using a so-called rodent bomb, can spread infestation to other units in the building.[18] In addition, a board may wish to arrange for extermination services to maintain the building’s reputation. Prospective purchasers may be discouraged from purchasing in a building where bedbug and rodent infestations are permitted to spread among units because centralized board oversight is absent. Lastly, boards may wish to assume the cost of extermination to avoid the potentially greater cost of litigation with impacted unit owners.

Disclosure

A co-op or condominium apartment purchaser likely wishes to know of prior bedbug infestation, but does the seller have an obligation to disclose such information? Under New York’s Property Condition Disclosure Act,[19] a seller of residential real property must disclose certain information, including prior insect or pest infestation, before signing a contract of sale. However, this law does not apply to co-op or condominium apartments. Instead, the common-law doctrine of caveat emptor applies, which does not place any affirmative obligation on the seller to disclose prior infestations. However, “if a prospective buyer asks a specific question about whether the apartment has had bedbugs, the seller has an obligation to answer honestly.”[20] If the broker knows of the infestation, the broker has an affirmative obligation to tell the prospective purchaser; however, the seller does not have a duty to tell the broker of a prior infestation.

Eradication and Prevention

Boards should take precautions to prevent bedbug infestations. First, occupants should be informed to immediately report a bedbug sighting to the resident manager and managing agent. Unlike other pests, a bedbug problem explodes exponentially if it is not dealt with immediately and bedbugs can quickly spread from one apartment to another. Further, occupants should be advised that encasements to protect mattresses and box springs from bedbug infestations are available which retain the mattress’ comfort but keep bedbugs out.[21] Occupants should also be discouraged from purchasing used mattresses, box springs and furniture.

Once an infestation has occurred, there are several eradication methods that may be preferable to conventional pesticide treatments, which may be ineffective. The key to a successful outcome is using an exterminator experienced in bedbug eradication techniques. One of the newest treatments, Cryonite, is advertised as a “green” solution “that’s safe for people with sensitive skin, allergies, asthma, medical conditions, babies, young children, the elderly, even pets.”[22] Cryonite uses pressurized carbon dioxide vapor, which enters cracks, crevices and the like and exterminates bedbugs by freezing their fluid, killing them instantly. Another treatment considered effective involves heating and maintaining a temperature of at least one hundred forty degrees in the affected room or apartment for two hours.

Conclusion

Bedbugs are not life threatening; however, courts consider them an intolerable condition. In addition to the nocturnal anxiety and bites they inflict, eradicating bedbugs can be difficult. Although there is no direct New York case law on the subject, it is probable that a co-op board is responsible for eradicating a bedbug infestation even if it is limited to a single apartment, provided that the source of the infestation is not the owner’s personal property. Infestation of multiple apartments will likely trigger a co-op and condominium board’s duty to eradicate the problem. In a condominium building, if a single-unit infestation spreads from building common elements, the board is likely responsible to eradicate the problem. Boards and managers should make serious efforts to educate building occupants about prevention of bedbug infestations and to report the problem to building management as soon as it is discovered; managers should engage experienced extermination professionals as soon as they have notice of a problem. Failure to address bedbug infestations can expose boards to liability for damages and attorney’s fees and repeated and continuous failures to address infestations may warrant punitive damage awards. Bedbugs can affect buildings regardless of the wealth or prestige of its occupants. It is important for boards to act expeditiously because bedbug infestations can escalate quickly, making eradication more difficult, expensive and disruptive to the co-op and condominium community.

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Footnotes

1. “Bed Bugs Biology and Management,” Harvard School of Public Health available at http://www.hsph.harvard.edu/ bedbugs/; E.B. Solomont, “Bedbugs Emerge as New Area of Housing Law,” The New York Sun, Sept. 26, 2008.

2. Sewell Chan, “Everything You Need to Know About Bedbugs but Were Afraid to Ask,” N.Y. Times, Oct. 15, 2006. See also Douglas Stern, “A Serious Problem for Boards and Homeowners,” The Cooperator: The Co-op & Condo Monthly, April 2008.

3. Chan, supra. See also Andrew Jacobs, “Just Try to Sleep Tight. The Bedbugs Are Back,” N.Y. Times, Nov. 27, 2005.

4. RPL §235-b provides, in part:

(1) In every written or oral lease or rental agreement for residential premises the landlord or lessor shall be deemed to covenant and warrant that the premises so leased or rented and all areas used in connection therewith in common with other tenants or residents are fit for human habitation and for the uses reasonably intended by the parties and that the occupants of such premises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety. When any such condition has been cause by the misconduct of the tenant or lessee or persons under his direction or control, it shall not constitute a breach of such covenants and warranties.

(2) Any agreement by a lessee or tenant of a dwelling waiving or modifying his rights as set forth in this section shall be void as contrary to public policy.

5. Frisch v. Bellmarc Management Inc., 190 AD2d 383 (1st Dept. 1993); Accord, Linden v. Lloyd’s Planning Service Inc., 299 AD2d 217 (1st Dept. 2002).

6. Richard Siegler and Eva Talel, “The Warranty of Habitability, 2006,” NYLJ May 3, 2006, p. 3, col. 1. See also, Kenmart Realty v. Alhalabi, NYLJ, Dec. 19, 1994 at p. 32, col.1 (City Ct. of Yonkers, Westchester Co.) (persistent rat infestation warranted a 100 percent rent abatement); Northwood Village v. Curet, NYLJ, Nov. 27, 1998 at p. 1, col.1 (2nd Jud. Dept. Suffolk Co.) (100 percent rent abatement for landlord’s failure, inter alia, to cure vermin and rodent infestation).

7. 80 Misc 666. (N.Y. Supp. App. Term 1913).

8. 4 Misc3d 515 (Civ. Ct. N.Y. Co. 2004).

9. 6 Misc3d 1029 (N.Y. Just. Ct. 2005).

10. Richard Siegler and Eva Talel, “Another Look at the Warranty of Habitability,” NYLJ March 3, 2004, p. 3, col. 1.

11. Supra, note 4 .

12. Grogan v. Gamber Corp., 19 Misc3d 798 (N.Y. Sup. Ct. 2008).

13. 347 F.3d 672 (7th Cir. 2003). See also, Richard Siegler and Eva Talel, “Another Look at the Warranty of Habitability,” supra note 10; Minjak Co. v. Randolph, 140 AD2d 245 (1st Dept. 1988) (sustaining a punitive damage award where landlord of rental building displayed a wanton disregard for the safety of others in performing stair demolition: steps were removed and no warning sign posted); Schimmel v. Ritz Tower Inc., NYLJ, Feb. 9, 2000, at p. 28, col.6 (Sup. Ct. N.Y. Co.), appeals withdrawn, 274 AD2d 979 (1st Dept. 2000) (It is important to note that while the court denied the motion to dismiss the plaintiff’s punitive damage count, the court also held that the co-op could renew its motion to dismiss that count at trial, if no supporting evidence was presented.)

14. Administrative Code §§27-2003 and 27-2018(b).

15. 149 Misc2d 828 (Civ. Ct. 1991).

16. 163 Misc2d 66 (Civ. Ct. 1994).

17. See Residential Board of Managers of Century Condominium v. Berman 213 AD2d 206 (1st Dept. 1995) See also, Siegler and Talel, supra note 10.

18. Jacobs, supra note 3.

19. RPL §465.

20. Jay Romano, “Q&A; Bedbugs: To Tell Or Not to Tell?,” N.Y. Times, Jan. 20, 2008.

21. “Don’t Let the Bedbugs Bite,” New York Apartment Law Insider, December 2006.

22. Stern, supra note 2.

Richard Siegler is a partner at Stroock & Stroock & Lavan and is an adjunct professor at New York Law School. Eva Talel is also a partner at Stroock and chairperson of the Cooperatives and Condominium Law Committee of the New York City Bar Association. Elan Blum, a student at Cardozo Law School, and Margaret Jones, a research librarian at Stroock assisted in the preparation of this article. Stroock is counsel to the Real Estate Board of New York.
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Postby TenantNet » Thu Feb 09, 2012 1:29 pm

Who Is Responsible for Eradicating Bedbugs?
Jeffrey Turkel and Joshua Kopelowitz
New York Law Journal
02-09-2012

While bedbugs have been mounting a comeback throughout New York City, the courts and the Legislature have struggled to catch up on the issue of liability for remediation. This article addresses the most frequently asked question in bedbug cases in residential apartments: Who pays?

The starting point for any discussion regarding conditions affecting the health or safety of an occupant of a New York City apartment always begins with the warranty of habitability provision found in Real Property Law §235-b, which states:

In every written or oral lease or rental agreement for residential premises the landlord or lessor shall be deemed to covenant and warrant that the premises so leased or rented and all areas used in connection therewith in common with other tenants or residents are fit for human habitation and for the uses reasonably intended by the parties and that the occupants of such premises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety. When any such condition has been caused by the misconduct of the tenant or lessee or persons under his direction or control, it shall not constitute a breach of such covenants or warrants.

In New York City, apartments are generally rentals, co-operatives, or condominiums. The law regarding each type of apartment is discussed below.

Rental Apartments

Because the warranty of habitability applies to leases, it obviously applies to rental apartments. The recent spate of bedbug cases­usually involving non-payment of rent and a counterclaim for breach of the warranty of habitability­has necessarily required courts to apply the warranty of habitability where a bedbug infestation has been found in a rental apartment.

The first proceeding in recent years to deal with a bedbug infestation and its relationship to the warranty of habitability was Ludlow Properties v. Young, 4 Misc.3d 515, 780 N.Y.S.2d 853 (Civ. Ct. New York Co. 2004). In Ludlow, the Civil Court, "in an apparent case of first impression involving warranty of habitability due to bedbugs," held that the presence of bedbugs in the tenant's apartment, notwithstanding the landlord's diligent efforts at remediation, impacted upon tenant's health, safety and welfare. The court awarded the tenant a 45 percent rent abatement for a period of six months, granted the landlord a judgment of possession and a money judgment less the abatement. Id. at 517, 518.

Similarly, in Grand Review LLC v. Moore, NYLJ. Nov. 19, 2008, at 27, col. 1 (Civ. Ct. Queens Co.), the tenant's testimony at trial, as credited by the Civil Court, established that landlord made several attempts to eradicate the bedbug infestation, but that such attempts were insufficient. Accordingly, the court awarded tenant a 40 percent rent abatement in the amount of $2,143.20, and granted the landlord a judgment of possession and a money judgment, less the abatement. See also, Valoma v. G-Way Management, LLC, 2010 WL 4608696 (Civ. Ct. NY Co. 2010).

In Bender v. Green, 24 Misc.3d 174, 874 N.Y.S.2d 786 (Civ. Ct. New York Co. 2009), the tenants also alleged a bedbug infestation in a non-payment proceeding. The Civil Court found that the trial evidence established that there were bedbugs in the subject apartment at some point during the relevant time period. The court held that "the evidence suggests that the bedbugs were introduced into the Subject Premises, through no fault of the Petitioner [landlord], and in all likelihood by the Respondents themselves." Id. The court further held that evidence established that landlord took prompt action to eradicate the bedbugs, including, but not limited to, making its exterminator available to tenants as they desired. Id. at 184-185.

Notwithstanding all of the foregoing, the court awarded tenants a 12 percent rent abatement in the sum of $2,724.21 for the period of bedbug infestation, and held in relevant part:

RPL §235-b provides in pertinent part "[w]hen any such condition has been caused by the misconduct of the tenant or lessee or persons under his direction or control, it shall not constitute a breach of such covenants or warrants (id.)."

Petitioner did not establish at trial that the presence of bedbugs was caused by any "misconduct" by Respondents.

There is nothing in the record to suggest that any deliberate or intentional act was done by Respondents which led to the presence of bedbugs in the Subject Premises, or even that Respondents were negligent in any manner….

The Court finds that neither party is the prevailing party entitled to legal fees. Petitioner is entitled to a final judgment in the amount of $2,941.19. Issuance of the warrant is stayed five days for payment.

See also, JWD & Sons, Ltd. v. Alexander, 33 Misc.3d 1217(A), 2011 WL 5222829 (Table), 2011 N.Y. Slip Op. 51962 (Town Court, Westchester Co., Decided Sept. 28, 2011) (tenant's rent abatement as a result of bedbugs was limited to that portion of rent she paid during infestation. Tenant was not entitled to an abatement of rent paid by a government agency on her behalf).

The New York State Division of Housing and Community Renewal (DHCR) took a different approach in Matter of 91-32/43 195th St. LLC, DHCR Adm. Rev. Docket No. WD110043-RO, issued June 26, 2008. There, a tenant alleged a reduction in services based on a bedbug infestation throughout the apartment. Landlord had exterminated the apartment three times within the month before receiving tenant's complaint; in addition, landlord provided monthly extermination service. DHCR's inspection of the apartment found only evidence of bedbug infestation in a mattress and dead bedbugs in the bedroom of the complaining tenant. DHCR held that the presence of dead bedbugs suggested that landlord's extermination was effective. Further, DHCR held that the landlord was not responsible for a bedbug problem that existed solely in the tenant's personal property.

In Joseph v. Apartment Management Associates, LLC, 30 Misc.3d 142(A), 2011 N.Y. Slip Op. 50303(U) (2d, 11th and 13th Judicial Districts, App. Term 2011), plaintiff sued the landlord's managing agent in small claims court for $5,000 for the loss of personal property as a result of an infestation of bedbugs in his apartment and was awarded $3,342.83. The Appellate Term, Second Department, reversed the small claims judgment and held that plaintiff's right to recover, if any, stemmed from Multiple Dwelling Law §80(1) because the warranty of habitability does not provide for consequential damages, such as property damage. The Appellate Term further held that there was "insufficient proof to establish that defendant failed to act with reasonable diligence upon being advised by plaintiff of the bedbug infestation in [plaintiff's] apartment."

Cooperatives

Cooperative apartments are also governed by a lease, most commonly known as a proprietary lease, and, similar to rental apartments, are also governed by the warranty of habitability. See, Suarez v. Rivercross Tenants' Corp., 107 Misc.2d 135, 139, 438 N.Y.S.2d 164 (1st Dept. 1981). Most proprietary leases provide that the shareholder is responsible for conditions within the unit and that the cooperative is responsible for conditions outside the four walls of the apartment.

In Zayas v. Franklin Plaza, 23 Misc.3d 1104(A), 881 N.Y.S.2d 368 (Civ. Ct. New York Co. 2009), a tenant in a Mitchell-Lama cooperative development sued her landlord in negligence for loss of property and medical expenses arising from a bedbug infestation. The tenant testified that for over two years, she took steps to eradicate the bedbug infestation from her apartment but to no avail. In defense, the cooperative asserted that it could not be held responsible for tenant's loss because "shareholders of the Mitchell-Lama apartment units were responsible for remedying bedbug infestation." Id. In support of this position, the cooperative introduced a letter from the Department of Housing Preservation and Development which stated:

Franklin Plaza is a co-operative development and as such, each shareholder is responsible for the extermination of the bed bugs in their apartment unit. After a licensed exterminator completes a program of bedbug eradication at the shareholder's cost, Franklin Plaza will be responsible for a one time fogging of the apartment unit at the landlord's cost.

The Civil Court rejected the cooperative's position, holding that "HPD's letter opining that each shareholder at Franklin Plaza is responsible for the extermination does not provide the cooperative corporation with a safe harbor." Id. The court held:

Generally, a shareholder of a cooperative is responsible for maintaining the apartment in good repair and would be responsible for extermination within the apartment. However, this claim for damages is predicated upon claimant's credible and undisputed testimony that there was a building-wide bed-bug infestation. Section 78(1) of the Multiple Dwelling Law imposes a non-delegable duty upon the cooperative corporation, as landlord, to maintain the building in good repair.

Defendant was on notice of the bed-bug infestation and took no steps to remedy the conditions.

See also, the unreported decision Mutual Redevelopment Houses Inc. v. Morgan Kennedy and New York City Human Resources Administration/Department of Social Services-Adult Protective Service, (Sup. Ct. New York Co. 2009).

Condominiums

A condominium unit owner owns his or her unit outright, and is not a party to a lease. Accordingly, courts have held that the warranty of habitability does not apply to condominium units. See, Linden v. Lloyd's Planning Service Inc., 299 A.D.2d 217 (1st Dept. 2002). Notwithstanding the foregoing, pursuant to the New York City Housing Maintenance Code, "[w]hen any premises is subject to infestation by rodents or insects…owner or occupant in control shall apply continuous eradication methods." Administrative Code 27-2003 and 27-2018(b).

Courts have held that if a defective condition exists solely in a unit then it is the responsibility of the unit owner to correct same; if a defect is building wide and/or the result of a faulty common element, then it is the responsibility of the condominium board. See, Kandell v. Saunders III, 224 A.D.2d 185, 186, 637 N.Y.S.2d 114 (1st Dept. 1996); see also, Smith v. Parkchester North Condominium, 163 Misc.2d 66, 619 N.Y.S.2d 523 (Civ. Ct. New York Co. 1994).

Accordingly, it can be fairly assumed that if a bedbug infestation is limited to one unit then, similar to a cooperative, it will most likely be that unit owner's responsibility. However, if the unit owner can show that the bedbugs originated from common elements and/or is a building-wide infestation, the burden will shift to the condominium board.

Legislative Action

On Aug. 30, 2010, the New York City Council enacted §27-2018.1 of the Administrative Code of the City of New York, captioned "Notice of Bedbug Infestation History." Section 27-2018.l requires an owner to furnish to a tenant entering into a new lease a notice setting forth the bedbug infestation history, if any, for the subject premises and the building for the previous year. If an owner fails to provide the notice, the tenant may file a complaint with DHCR.

The notice form, created by DHCR, asks the landlord/owner of the apartment to furnish the potential tenant with, inter alia, the following information:

• A history of any bedbug infestation within the past year in the building and apartment; and

• The location of any infestation in the building and apartment which has or has not been eradicated and/or whether eradication measures were undertaken.

As of the date of this writing, the courts have not issued any published decisions regarding §27-2018.1.

The new law leaves many questions unanswered. For example, the terms "infestation" and "eradication" are not defined. Moreover, it is not clear if §27-2018.1 applies to proprietary leases and cooperative or condominium subleases; if so, how can the owner of an individual unit have knowledge as to building conditions or conditions in other units?

It appears that bedbugs are, unfortunately, here to stay, thus giving the courts plenty of opportunities to sort things out.

Jeffrey Turkel is a partner at Rosenberg & Estis. Joshua Kopelowitz is an associate at the firm.
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Re: Bed bugs

Postby TenantNet » Thu Dec 01, 2016 9:34 pm

Bedbugs: Identification, Prevention, Treatment, and Liability
Legal Support Unit
Legal Services NYC
Nov. 22, 2010

See attachment
Bedbugs 11-22-10.pdf
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