Brown v. BK 418 LLC

• Decision Date: 29 November 2018
• Docket Number: Index No.: 7665/2015
• Citation: 2018 NY Slip Op 33330 (U)
• Parties: MARY BROWN and SANDRETTA BROWN, Plaintiffs, v. BK 418 LLC and GREENROCK MANAGEMENT COMPANY, Defendants
• Court: New York Supreme Court

2018 NY Slip Op 33330(U)

MARY BROWN and SANDRETTA BROWN, Plaintiffs, v. BK 418 LLC and GREENROCK MANAGEMENT COMPANY, Defendants

Index No.: 7665/2015

New York Supreme Court

FILED: December 12, 2018

November 29, 2018

At an IAS Term, Part 34 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse thereof at 360 Adams St., Brooklyn, New York on the 29^th day of November 2018.

PRESENT: HON. LARA J. GENOVESI, J.S.C.

DECISION AFTER TRIAL

Andrew Black, Esq.

Attorney for Plaintiffs

26 Court Street

Brooklyn, New York 11242

Avi Rosengarten, Esq.

Attorney for Defendants

1707 Avenue M

Brooklyn New York 11230

Procedural Background

This action was brought against a landlord and property manager to recover for property damage and damages for mental anguish resulting from a flood.

This action was commenced on June 17, 2015. Issue was joined on or about September 15, 2015. The matter was assigned to this Court for trial on June 24, 2018. A nonjury trial was held before this Court, on July 19, 2018 and July 25, 2018. The matter was then adjourned to October 9, 2018, for submission of the written summations, proposed findings of fact and the minutes of the trial. The Court received plaintiffs' submission on October 9, 2018. A letter was sent to counsel on October 12, 2018, which stated that if defendants' submission was not received by October 26, 2018, the matter would be fully submitted. Defendants' submission was not received, and the matter was fully submitted on October 26, 2018.

Summons and Complaint

Plaintiffs allege in their summons and complaint that defendants were negligent,

in failing to use reasonable care; failing to use caution; in maintaining said premises in such a defective and deteriorated condition that it was rendered unsafe and liable to cause injury to the tenants thereat and more particularly the plaintiffs herein; in causing and allowing the premises to become and remain flooded and dangerous which was liable to cause injury and which did cause injury to the plaintiffs; in causing and permitting the pipes thereat to become frozen; in providing inadequate heat; in failing to warn the plaintiffs of such hazardous conditions or to take any precautions whatsoever in order to prevent the flood; in failing to remedy the condition despite having due knowledge and notice of same; in failing to place barricades or warning signs about the defect; in allowing the area to become and remain a trap and a hazard to persons lawfully and properly thereon; in failing to protect the plaintiffs and their property despite having a duty to do so; in failing to exercise prudence and caution; and in violating all applicable statutes and ordinances.

(Summons and Complaint at ¶ Eighteenth).

Findings of Fact

The plaintiffs are mother Mary Brown (Mary) and daughter Sandretta Brown (Sandretta). Sandretta testified that she and her mother, Mary, lived at 815 Marcy Avenue (the property), apartment 3, a rent stabilized apartment, for well over 40 years, without a lease.

In June 2013, defendant BK 418 LLC purchased the property (see Trial Exhibit, Plaintiff's 1). On July 8, 2013, a notice was provided to the tenants of the property. The notice, which is on Greenrock Management LLC (Greenrock) letterhead, indicates that the rent should be paid to Mr. Miller or sent to Greenrock. It further indicated that Greenrock should be contacted by telephone or email should any repairs be required. The plaintiffs each signed a copy of the notice, acknowledging their receipt of it (see Trial Exhibit, Plaintiff's 2). Their rent was $1,100.00 each month at that time. Plaintiff testified that when defendants purchased the building, Mr. Miller and Mr. Abraham Grunhut visited plaintiffs' apartment and told plaintiffs that the defendants did not intend to renew their lease. Plaintiffs' replied that they did not have a lease, and that Mary "went through DHCR" (Trial Transcript, July 25, 2018 at p 18, ll 7-12; see also Trial Transcript July 19, 2018 at p 3, ll 15-24).¹

In December 2013, the plaintiffs were the only occupied apartment in this brownstone building. The plaintiffs each testified that they were out of town from December 26, 2013, through Saturday, January 11, 2014, for a "home going" memorial service for Anthony Brown, their brother and son, During their drive home to Brooklyn on January 11, 2014, they received a call from their neighbor from the attached building, Sara Peterson, who indicated that the Brown's apartment was flooded. On their return, the apartment was dark, and the stairs were soaked with water. Water was dripping downfrom the ceiling. To enter the apartment, Sandretta had to kick in the apartment door. They saw that the ceiling collapsed, the floors buckled, the carpet was soaked, and the water remained in the apartment, at a level so high as to cover their shoes. Sandretta left a voicemail with Greenrock. The next day "Mr. Miller and Mr. Green came to the house to see . . . and Mr. Green gave my mother and I money to pay for one-night room at the Best Western on Atlantic Avenue" (Trial Transcript July 19, 2018, p 10 ll 9-13). Plaintiff testified that the owner learned of the water damage when plaintiff called him (see id. at p 34, ll 28-25; p 35, ll 1-4).

It was the plaintiffs' understanding that the cause of the flood was a burst pipe from the apartment above her on the fourth floor. Mary testified that their apartment had a radiator with no thermostatic valve. There was a knob on the radiator that regulated her heat, She indicated that the oil for the entire building was delivered to the basement. And they did not have access to the basement. Further, she testified that "I leave my heat on. And I was paying for the heat." (Trial Transcript July 19, 2018, p 48 ll 21). Maureen Sobers (Sobers) is the neighbor in the attached building to plaintiffs' apartment who first discovered the flood. She lives on the second floor. Sobers testified that when the heat is on in the attached building, the shared wall is warm. At the time of the leak the shared wall was cold (see Trial Transcript July 25, 2018, p 4 ll 16-20). The walls felt cold for a couple of days prior to the flood and there was no heat on when Sobers entered the plaintiffs' apartment during the flood (see Trial Transcript July 25, 2018, p 6 ll 13-25, p 7 ll 1-5).

The extensive damage to the plaintiffs' apartment is documented in photographs (see Trial Exhibit, Plaintiff's 5 a-gg). The plaintiffs were guests at the Best Western from January 12, 2014, through February 24, 2014, for a total cost of $4,573.74 (Trial Exhibit, Plaintiff's 6). Sandretta testified that her landlord gave her $200 for the hotel on their first night stay. Thereafter, the plaintiffs moved into temporary housing at 801 Willoughby Street, Brooklyn, New York until July 2014, During this period, the plaintiffs paid rent, less the costs of storage for their items that they salvaged and mailbox fees. During this time, the plaintiffs paid rent in the amount of $583 (Trial Transcript July 25, 2018, p 13 l 1).²

The plaintiffs had renter's insurance through Liberty Mutual at the time of the flood. Sandretta testified the plaintiffs received $36,000.00³ from Liberty Mutual but their "rental insurance did not cover everything" (Trial Transcript July 19, 2018, p 15 ll 9-10); to wit:

1) Two leather sleeper sofas (see Trial Exhibit, Plaintiff's 5m-n) purchased in March 2013 for $2,000.00;

2) Cast iron tub (see Trial Exhibit, Plaintiff's 5y), purchased in 1971 for $2,000.00, estimated value $2,400.00;

3) Brass chandelier, estimated value $300.00⁴

4) Cost of cleaning beige couches $200.00;

5) Two ceiling fans (see Trial Exhibit, Plaintiff's 5r), purchased approximately in 2006, cost to replace $300.00;

6) Rare comic books (see Trial Exhibit, Plaintiff's 7), unknown value;

7) Rug wall hanging, purchased in 2013, unknown value;

All of the fixtures for which plaintiffs seek monetary recovery are fixtures that plaintiffs purchased and installed in their rental apartment. On cross examination, Sandretta testified that the renter's insurance would not cover the items purchased in 2013; the wall hanging and the two leather sofas. Also, she stated that she received an appraisal for the cast iron tub for $2,400.00 but no appraisal was marked for identification or moved into evidence at trial. She further testified that the tub was not damaged, and she instructed the landlord to leave the tub during the renovation, but the landlord claimed the tub was damaged and replaced it with a fiberglass tub. She also testified that the ceiling fans were not replaced but central air-conditioning was installed. Sandretta testified that she did not ask the owner after the flood to keep the cast iron tub or the chandelier. Rather, prior to the flood she had a conversation with the landlord about apartment renovations where she stated that she wants to keep her tub and lights (see Trial Transcript July 19, 2018, p 37 ll 17-25; p 38 ll 1-6).

Plaintiffs also seeks reimbursement for the cost of food during their stay at the Best Western. Plaintiffs contend that since the hotel did not have a kitchenette, they had no choice but to purchase their meals out. Sandretta testified that the cost of the plaintiffs' meals from January 12, 2014, through February 24, 2014, was $60.00 per day(see Trial Transcript July 19, 2018, p 22 ll 17-21). She estimates that the cost of meals while living at their apartment is approximately, $40.00 per day (see Trial Transcript July 19, 2018, p 22 ll 9-16). Sandretta testified that she had receipts for the food "in my bag" but no receipts were marked for identification or moved into evidence at trial (see Trial Transcript July 19, 2018, p 41 ll 7-11).

Abraham Grunhut testified that he was a "member" of BK 418 LLC and Greenrock. He further testified that BK 418 sold the property and the entity is no longer active (Trial Transcript July 25, 2018, p 9 ll 21-25; p 10 ll 1-9). He did not recall the names...