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Recovering for Damages

May a tenant recover damages for experts, attorneys’ fees in other proceedings and treble (triple) damages for unlawful eviction where their apartment was uninhabitable? That was the question in Weich v. 308 West 104, LLC.

Defendants 308 West 104, LLC, Esther Gruss, Michael Gruss, David Eisenstein, and Isaac Eisenstein sought an order dismissing portions of the damages claims in the complaint made by plaintiffs Pat Gallant Weich, Martin J. Weich, M.D., and Graig F. Weich.

In 1978, plaintiffs Martin Weich and Pat Gallant Weich entered into a lease agreement (which was repeatedly renewed) for Penthouse A, which comprised the ninth and tenth floors of 308 West 104th Street, New York, New York. Their son, Graig Weich, lived in the apartment continuously until it allegedly became uninhabitable in August 2004.

In 2003, Mrs. Weich allegedly complained several times to the defendants about water infiltration and asserted that mold was discovered on the window shades in a bedroom. In mid-2003, a slab of concrete fell from the living room ceiling, allegedly just missing Dr. Weich. Plaintiffs alleged that the water infiltration on both floors continued, including through the terrace into Graig Weich’s bedroom. It was unclear what caused the water infiltration.

Defendants alleged that plaintiffs stored cabinets on the roof deck of the apartment building, blocking the drains and causing leaks. The plaintiffs disputed this allegation.

In 2004, the plaintiffs vacated the apartment while the defendants made repairs. The defendants alleged that they offered plaintiffs another apartment, a two-bedroom, in the same building, and that the plaintiffs could have lived there while the repairs were being worked on, but that the plaintiffs refused the offer. The plaintiffs disputed that such an offer was ever made. The plaintiffs rented or sublet various apartments as the repairs continued.

The plaintiffs claimed that their personal property was damaged because of the water infiltration and mold. They asserted that they hired repair people and movers. They claimed they had to throw out damaged items and store others in a rented space. Finally, they hired their own engineers, architects, and environmental experts for advice because they were concerned about their health and safety.

The plaintiffs complained to various New York City and New York State agencies. In May 2008, the New York State Division of Housing and Community Renewal, Office of Rent Administration (DHCR) reduced their rent to one dollar per month, which the plaintiffs were still paying at the time of the decision. In 2008, the defendants filed an application with DHCR to restore the rent based on restoration of services, but DHCR denied the application and found that, based on an inspection of the apartment in March 2009, the apartment remained uninhabitable.

On October 13, 2006, the plaintiffs brought the action for personal injury (the injury claim was subsequently withdrawn) and for damages arising out of the defendants’ negligence. There had been no determination as to liability; however, the defendants moved to limit the plaintiffs’ claims for damages sought as a result of the defendants’ alleged negligence. The defendants asserted that the plaintiffs’ claims for treble damages, attorneys’ fees, personal property damage, miscellaneous expenses, expert fees, and alternative living expenses could not be recovered.

The plaintiffs first argued that the defendants could not move for judgment limiting damages, but the court determined that such a motion was proper. The plaintiffs alleged that the challenged monetary damages flowed from their negligence claim. The plaintiffs sought treble damages for wrongful eviction pursuant to Real Property Actions and Proceedings Law Section 853, which allow for treble damages where tenants were evicted unlawfully. The court found that the statute was inapplicable and that plaintiffs had no basis to recover treble damages based on the facts here.

The plaintiffs also sought an award of attorneys’ fees which they incurred in a related landlord/tenant action and in the proceeding before the DHCR. The court noted well established law that attorneys’ fees could only be sought in the action in which they were incurred. Accordingly, it held that the plaintiffs could not recover attorneys’ fees in the landlord/tenant action (which, in any event, was still pending) or the DHCR proceeding by demanding the monies here.

The plaintiffs argued that a statute, Real Property Law Section 234, allowed them to seek attorneys’ fees for the other actions. The court explained that Section 234 gave tenants a reciprocal right to seek attorneys’ fees where a lease allowed the landlord to seek such fees, but the statute did not allow a party to recover fees in an action other than the one then pending before the court.

The defendants also sought to limit the plaintiffs’ claims for personal property damage on the ground that the plaintiffs had failed to come forth with proof of the damage. The defendants argued that the plaintiffs had failed to detail what specific property, other than Graig Weich’s collectables, were damaged, or the reasonable value of the allegedly damaged personal property.

The defendants cited a variety of cases where a court found that a plaintiff’s proof of damages was insufficient. However, the court explained that in those cases, the claims were dismissed after trial, and not on a motion for judgment. Indeed, the plaintiffs here claimed that there were issues of fact as to whether personal property was damaged as a result of the defendants’ alleged negligence. The court refused to dismiss the claims, finding that plaintiffs were entitled to the opportunity to prove their damages at trial through testimony or any other means.

The plaintiffs sought compensation for the salaries of people they hired to let people into their apartment and for the cost of organizing and packing their apartment. The defendants argued that these claims should have been dismissed because they were not foreseeable or a consequence of defendants’ alleged negligence. The plaintiffs claimed the charges were reasonable as their home was uninhabitable and it sustained severe damage.

The court found that the defendants failed to show that the damages could not be sought. There was an issue of fact as to whether hiring persons to oversee the apartment, organize, pack, and move personal property was a reasonably foreseeable consequence of defendants’ alleged negligence in causing flood damage to the apartments and allowing the apartment to remain in damaged condition.

The defendants also argued that the plaintiffs could not seek damages for the costs of experts plaintiffs retained. While the plaintiffs explained that the experts were hired before the litigation began, the court found that the plaintiffs could not seek damages for these experts regardless of when they were retained. They were now experts in the litigation and recovering their fees as part of a damage award was inappropriate.

The defendants argued that the plaintiffs failed to mitigate their damages because they rented two apartments that were more expensive, rented furnished apartments, or rented furniture for unfurnished apartments. They also turned down the defendants’ offer to allow them to occupy another defendant-owned apartment. Finally, the defendants claimed the plaintiffs prevented workers from entering the apartment, and otherwise hindered work to be performed at the apartment.

Whether the plaintiffs failed to mitigate their damages, in respect to their alternative living expenses, was a question for the fact-finder (i.e., the jury or, if no jury, the judge at trial). It was up to the fact-finder to determine whether the plaintiffs’ actions were reasonable. Further, issues of fact existed as to whether the plaintiffs were offered an alternative apartment, as the plaintiffs disputed the defendants’ claim. There was also a dispute as to whether the plaintiffs prevented workers from entering the apartment.

Accordingly, the court dismissed the plaintiffs’ claims for treble damages, attorneys’ fees in other proceedings and expert fees, but did not dismiss their claims for loss of personal property, the cost of movers and alternate living expenses as the question of whether the plaintiffs’ proof was sufficient would have to be determined by a jury or judge after trial.

Comment: Although this case concerns a rental landlord and tenant, it discusses principles which are equally applicable to cooperatives, keeping in mind that a cooperative corporation and shareholder are in a landlord/tenant relationship. While not directly applicable, the decision is also instructive with respect to condominiums.

First, the court allowed the defendant/landlords to make a motion to dismiss certain elements of their tenants’ claimed damages, parsing the complaint so that the issues at trial would be limited to those which the tenants could, if successful, actually recover. While each case is different, whether to limit the type of damages a plaintiff can seek at trial is often a consideration for a defendant.

The court here found that there were certain items for which damages were unavailable based upon applicable legal principles. For example, the unlawful eviction statute the tenants relied on to claim the right to treble damages will not be invoked when an apartment is rendered uninhabitable; it requires a forcible ouster. Moreover, although the tenants expended attorneys’ fees in other proceedings, the court found that they could not be recovered in this action. Further, there was no basis upon which the tenants could claim they were entitled to recover the cost of their experts.

On the other hand, the court did not dismiss – at this stage – the tenants’ claims for personal property damage, the cost of movers, and the cost of living in another apartment. As to those, the tenants would be allowed to present their proof and have a jury or judge decide.



For Plaintiffs: Law Offices of Richard M. Levy
For Defendants: Rivkin Radler


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