1. List the issues that mitigate the landlord’s liability even though there is a breach of the warranty of habitability.

2. What lessons should landlords and tenants learn from this case?

Geoffrey Green lived in a rent-control apartment in New York City. Bedbugs in his apartment forced him and his partner, Dana Shapiro, to sleep with the lights on, and rotate between sleeping in the bedroom, the kitchen, and the living room. They did not use the bedroom between May and August in 2005 and 2006.

Mr. Green testified that from April 2005 through July 2008, he did not have a single full night’s sleep during the summer months. Lack of sleep affected Mr. Green’s relationship with Ms. Shapiro and his ability to get to work on time. Mr. Green withheld rent from October 2005 through January 2007, but only for the prime bedbug months, that is, non-winter months, during this period for a total amount of $5,665.84. His landlord (Petitioner) brought a forcible detainer action to have him evicted. Mr. Green counterclaimed for his damages from the bedbugs. Mr. Green offered into evidence two zip-loc bags containing dead bedbugs. The exterminator for the complex had come to spray the building but said he never saw any live or dead bedbugs in the Green/Shapiro apartment except the specimens that Mr. Green had shown him, in a zip lock bag.* The exterminator believed Green and Shapiro (Respondents) may have brought the bedbugs with them from their previous apartment. Theresa Lonng, a neighbor, testified that she had bedbugs in her apartment, but that she also had them in her apartment in the building next door, where she had lived until moving next to Mr. Green and Ms. Shapiro.

JUDICIAL OPINION

KRAUS, Judge … RPL § 235-b provides that in all residential lease agreements the landlord warrants that the premises leased are “fit for human habitation” and that occupants “shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety.” “[T]he statute places an unqualified obligation on the landlord to keep the premises habitable” throughout the term of the lease, and this obligation may not be waived or delegated. It has been well established that insect infestation is a condition which is considered to adversely impact upon the health and safety of the occupants of a residential premises.

The evidence suggests that the bedbugs were introduced into the Subject Premises, through no fault of the landlord (Petitioner), and in all likelihood by the Respondents themselves. When the Respondents moved into the Subject Premises there were no bedbugs in the premises for at least one year; and no other tenant in the Subject Building made a single complaint about bedbugs during the entire period in which Respondents alleged the Subject Premises were infested with bedbugs; and no violations for bedbugs placed at any point for any apartment in the subject building, including the Subject Premises, during the relevant period; and Respondents admit that they suffered a bedbug infestation in the apartment they lived in, immediately prior to moving into the Subject Premises; and Respondents acknowledge they travel for work-related purposes on a regular basis.

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.” Petitioner did not establish at trial that the presence of bedbugs was caused by any “misconduct” by Respondents. As one commentator has noted: ……………..