Cornell v. Dimmick
| Citation | 73 Misc.2d 384,342 N.Y.S.2d 275 |
| Parties | Rita CORNELL v. Bonnie DIMMICK. |
| Decision Date | 15 March 1973 |
| Court | New York City Court |
The petitioner brought a proceeding to evict the respondent from premises at 44 Cleveland Avenue, Binghamton, New York. The respondent admits in her answer each and every allegation of the petition and that all papers were properly served. The petition is based upon a 30 day notice to terminated tenancy on January 31, 1973. In her answer the respondent sets up as an affirmative defense, the defense of retaliatory eviction pursuant to Sec. 3--A.2 of the Binghamton Housing Maintenance and Rehabilitation Code. In essence that section provides that in case of a notice to quit the dwelling within 90 days after the tenant has availed himself of remedies against the owner, there shall be a rebuttable presumption that said notice to the tenant is a reprisal against the tenant for making such report or complaint or for having availed himself of such remedy against the owner as provided by law.
It appears that the facts in this case are as follows: That someone called the Columbia Gas Company of New York on December 12, 1972 requesting that the furnace be checked and the meter read carefully as there was a complaint that the bills were high and the heat was inadequate to the second floor. The proof as to who made the telephone call to the Columbia Gas Company was inconclusive. A serviceman went out on the call and found that the furnace had an illegally installed blower which took cold air from around the furnace instead of from cold air return ducts. This is dangerous situation because of the fact that fumes from the furnace are pushed back into the apartment. His instructions in such a situation were to shut off the furnace and tag it and to return in 5 days to check and see whether or not the defect had been corrected. He informed the respondent that he was going to have to turn off the furnace and she objected because she was on her way to work and would leave her children without heat. The serviceman called the office and got permission to unhook the blower and leave the furnace on as a gravity furnace. To this day the furnace has been operating in such a fashion. On December 21, 1972, a serviceman from the Gas Company returned to the premises and found that the blower had been removed from the furnace.
When the respondent called Mrs. Cornell and informed her that the furnace would have to be fixed in 5 days, she was told she would have to find another place to live in that length of time. She was advised by her brother-in-law to call Code Enforcement and on December 20, 1972 she called Code Enforcement complaining about the heat and that the Gas Company had shut off the blower. John L. White, an inspector for the Binghamton Housing Code went to the premises and spoke with Mr. Cornell who is husband of the petitioner. Mr. Cornell at the time was working on the first floor apartment which was vacant. He informed the inspector that he had put insulation in to help the respondent bring down the heating bills and also had installed the blower on the furnace. He informed him also that he'd been advised by the Gas Company to remove the blower and close up the opening to bring the furnace back to a normal gravity operation. He also informed the inspector that he intended to replace the furnace with a new baseboard heating as soon as they could vacate the second floor apartment. The inspector also reported that there was no certificate of compliance on the second floor apartment. He also stated that Mr. Cornell had stated to him that he would supply the tenant with an electrical heater to supplement the inadequate heat. This aparently was never done.
The only witness offered by the petitioner was Patrick Cornell, husband of the petitioner. Mr. Cornell testified that he did the maintenance work for the property at 44 Cleveland Avenue. That he is a plaster mason principally but also does work on remodeling houses, concrete work, plumbing and electric work. That he attempted to help the respondent by insulating the walls, part of which was done last year and part of which was completed about 2 months ago. That about 2 months ago he installed a blower on the furnace to help bring down the respondent's heating bills. That he removed the blower in compliance with the Gas Company's direction. That in order to have the present furnace comply with the Gas Company's regulations it would be necessary to install 2 or 3 cold air returns from the cellar through the first floor apartment to the second floor. He expressed the opinion that this would take a lot of work and it would be uncertain whether the respondent would get sufficient heat then. For this reason he favored the alternative of installing a hot water system which required two pipes from the basement through the first floor up to the second floor apartment. That the decision to put in a hot water system was made after the Gas Company complained. Mr. Cornell further testified that the only reason why this proceeding is being brought is to gain possession of the premises for the purpose of doing the work at this time of year. That he intended to do much of the work himself and at this time of the year his work is slack as opposed to being heavy in warm weather when heat would not be required. He admitted that it was not absolutely essential that the work be done at this time. That it could be done in the summertime when heat was not required. It was his preference to do the work at this time because of the fact that he would not have the pressures of his occupation as a plaster mason. He stated that it would take two or three days of work in the apartment and seven or eight days in the cellar to install the furnace. He also stated that he had not ordered the furnace or the pipes as yet.
In rebuttal to this testimony the respondent stated that she was willing to continue with the heating problem until warm weather and in the event that the landlord decided to install the hot water system at the present time she would be willing to put up with the inconvenience for two or three days caused by the installation in the apartment. The thirty day notice to evict this tenant of slightly more than two years was dated December 20, 1972 and served on December 28, 1972. The notice of petition and...
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