WHEN A TENANT MAY STOP EVICTION BECAUSE OF FAILURE TO DO REPAIRS IN YORK CITY
New York law gives tenant a major weapon that can be used against landlord. Both the landlord and the tenant should be aware of NY CLS RPAPL § 755 and 756.
RPAPL § 755 allows tenants to put a stay on eviction in non-payment proceedings where the landlord has failed to make repairs. However, the law only allows for a stay in circumstances where the condition amounts to a constructive eviction of the tenant or where the condition "is, likely to become, dangerous to life, health, or safety, the court before which the case is pending may stay proceedings to dispossess the tenant for non-payment of rent, or any action for rent or rental value."
It should be noted that this RPAPL § 755 applies only when the landlord has commenced proceedings because of the tenant's failure to pay rent. Also, the condition complained of is restricted to the specific unit occupied by the tenant. Therefore, any condition outside of the unit at issue is irrelevant and cannot be raised to rescue the tenant from eviction. Further, Constructive eviction of the tenant was not shown by mere existence of department violations, such as leaky faucet. Peshkin v Powell (1944) 182 Misc 14, 48NYS2d 390. Many tenants facing eviction often believes that long list of HPD violations is enough to save them from eviction.
The tenant who is eager to rely on the condition of the premises to stop an eviction should thread cautiously. The court has established the precedent that a landlord was entitle to summary judgment where the tenant alleged constructive eviction on the basis that the landlord's repairs of kitchen and bathroom had rendered apartment uninhabitable for excessive period, where tenant admitted that he never gave up possession of the apartment, conceded broad scope of necessary repairs, and failed to support any of his claims, including a claim that the landlord purposefully delayed repair work. Wessel v Sichel (1997, 1st Dept) 238 AD2d 177, 655 NYS2d 955.
The law does not allow for the staying of eviction even where the condition in the premises constitutes eviction if the tenant does not deposit with the clerk of the court the entire sum of outstanding rent.
RPAPL § 756 provides of a stay of eviction where utilities are discontinued in any part of a multiple dwelling because of the failure of the landlord to pay the utility bill. The language here should be particularly noted by landlords. It does not include one to two family houses. It clearly states multiple dwelling. The landlord should be prepared to make the argument that RPAPL § 756 does not apply to one to two family houses.
These arguments are however, very complex are usually bested utilize when an attorney is retained
