Bedbugs!

May a tenant (including a co-op shareholder) obtain an abatement of rent or monetary damages in the event bedbugs are found in their apartment and their landlords have not successfully remediated the problem? That was the question in two recent cases that addressed the growing problem of bedbugs in New York City apartments, whether in rental or co-op buildings.

Bender v. Green began as a non-payment proceeding when respondents Geoffrey Green and Danna Shapiro failed to pay rent for their rent-stabilized apartment at 220 West 10th Street, in Manhattan for the period October 2005 through January 2007. They claimed that they did not have to pay full rent because of an infestation of bedbugs in the apartment.

The court held a two-day trial. Green testified that he previously lived in another building owned by the same landlord; that the prior apartment had bedbugs; and that he was familiar with the signs of bedbugs. He began having a problem in this apartment in April 2005 when he woke up with welts that were similar to insect bites. The landlord gave him the number of an exterminator kept on retainer by the landlord who came and treated the apartment.

Green claimed that he washed his clothes, sealed cracks, vacated the bedroom, and began sleeping in the kitchen and living room. He and Shapiro replaced portions of the wood bed, had the mattress encased in plastic and put their clothes into sealed bins. They changed linens frequently and vacuumed daily. Green put a notice in the lobby of the building notifying other tenants of the presence of bedbugs.

Even after the apartment was treated by the exterminator, Green testified that he had welts every day, all over his back, arms and legs, and sometimes on his face. Green produced photographs of the welts and a Ziploc bag with dead bugs, which he claimed were bedbugs.

Green called the landlord’s office once or twice a month, and it referred him to the exterminator. At one point, the building exterminator came twice a week. Green never consulted with or hired his own exterminator and testified that the infestation of bedbugs varied with the seasons. It escalated in the spring and summer, with August typically being the worst, and then diminished when winter set in. Green and Shapiro claimed they personally saw as many as 100 bedbugs in the apartment from April 2005 through July 2008. Shapiro kept a log of bedbug bites. Respondents never made written complaints because they were satisfied with the line of communication between the parties.

Shapiro called the New York City Department of Housing and Preservation Development (HPD) on numerous occasions to file complaints about bedbugs, however, on all but one of those occasions, she did not provide the inspector access to the apartment. No violation for bedbugs was placed by HPD either in the apartment or the building.

The landlord called Jeff Eisenberg from Pestaway Exterminators as an expert witness. Eisenberg’s company was among the first to identify the bedbug problem in the city. Eisenberg testified that bedbug infestation did not vary seasonally, and that individuals could be subjected to bites at any time of the year. Eisenberg identified some of the dead bugs presented by Green as bedbugs.

He explained that 90 percent of men don’t manifest bedbug bites, and that women are more commonly bitten, because of their higher body temperatures. Eisenberg did not believe that the photographs showed bedbug bites. The photos showed one individual bite, which was likely to be from a mosquito as bedbugs generally bite in a series of two or three bites. Other photos showed bites in areas of the body which a bedbug would not bite because the area lacks sufficient blood flow.

Eisenberg’s company performed an inspection in the apartment on July 23, 2007. It found no bedbugs, but it did find bedbug droppings under the mattress. Eisenberg testified that sometimes, after experiencing a problem with bedbugs as respondents did in their prior apartment, people develop “bedbug paranoia,” and insist on continuous treatment, despite lack of evidence of ongoing infestation. The court discussed the statutory warranty of habitability, which is applied to both rental apartments and co-op apartments. The statute states 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.” The court explained that the statute placed an unqualified obligation on the landlord to keep the premises habitable. Insect infestation has been considered to adversely affect the health and safety of the occupants of a residential premises.

The court found that the evidence established that, at least to some extent, there were bedbugs in the apartment at some point between September 2005 and January of 2007. They were not introduced through any fault of the landlord and that, in fact, they were probably introduced by the respondents. The court made this finding because there had been no bedbugs in the apartment for at least a year before respondents moved in; no other tenant in the building complained about bedbugs; no violations for bedbugs were placed on the building; respondents suffered bedbug infestation in their prior apartment; and both respondents travel regularly for business.

The landlord argued that since Green had introduced bedbugs into the apartment that absolved him of liability. The court rejected this argument. The warranty of habitability statute exempted landlords from liability if a condition was caused by the “misconduct” of a tenant. However, the landlord did not establish that the presence of bedbugs was caused by any misconduct. The court found that there was nothing in the record to suggest that there was any deliberate or intentional act performed by respondents which led to the presence of bedbugs in the apartment, or even that they were negligent. The court noted that it appeared that any individual venturing out into the world today, particularly an individual that travels, risks bringing bedbugs back home.

Thus, the court found that the presence of bedbugs constituted a breach of the warranty of habitability. The more difficult determination was what, if any, damages respondents were entitled to as a result of said breach. The court recited the legal principle that, once a breach has been established, the parties must come forward with evidence concerning the extensiveness of the breach, the manner in which it impacted upon the health, safety or welfare of the tenants and the measures taken by the landlord to alleviate the violation.

The court found that there was almost no evidence of the presence of bedbugs, let alone the extent of any infestation. The court noted that, although Green testified that he had made complaints to HPD on at least four occasions, there was never a single violation placed on the building for bedbugs. The exterminator never saw a bedbug. Over the three-year period the infestation allegedly took place, Green found roughly 12 bedbugs.

The court found that respondents’ testimony was not reliable and not consistent with other evidence in the record. Also, the court noted that the landlord took action by exterminating the apartment, sometimes twice a week. Ultimately, the court determined that bedbugs were present to some extent during the period, although respondents did not establish the extent or for how long. The court awarded respondents a 12 percent rent abatement for the period September 2005 through December 2006.

In Zayas v. Franklin Plaza, Jacqueline Zayas sued her landlord, which was a Mitchell-Lama co-op development. She testified that in 2007, she orally notified the co-op that her apartment was riddled with bedbugs. She was told by an employee, Paul Rifkin, that there was nothing that the co-op could do.

Zayas testified that she privately hired exterminators, who covered holes and sprayed. She discarded personal property and visited a physician as a result of the bedbugs. Zayas claimed that there was an infestation because of the adjacent apartments. Rifkin testified that the shareholders were responsible for remedying bedbug infestation. He produced a letter from HPD regarding a complaint from another shareholder at Franklin Plaza. HPD wrote that each shareholder was responsible for the extermination of bedbugs in this or her apartment but that, after a licensed exterminator completed a program of bedbug eradication at the shareholder’s cost, the co-op would be responsible for a one-time “fogging” of the apartment.

The court discussed the fact that bedbug infestation was interposed as a means for a tenant to obtain an abatement of rent or to support a claim of “constructive eviction.” In this case, however, Zayas sought money damages for negligence and the cost of her medical treatment. The court noted other cases where negligence claims brought by hotel guests who sustained personal injury as a result of bedbug infestation were upheld. The court explained that HPD’s letter did not provide the co-op with a safe harbor. Generally, the court stated, a shareholder is responsible for maintaining the apartment in good repair and would be responsible for extermination within the apartment. However, Zayas testified credibly and without contradiction that this was a building-wide problem.

The court found that the co-op breached its duty of care. It was on notice of the bedbug infestation and took no steps to remedy the condition. The court awarded Zayas $4,200 for her personal property and the cost of her medical treatment arising out of the bedbug infestation.

Comment: Bedbugs have become a major nuisance in many apartment buildings. It appears that it is not an issue of whether the building or apartment is clean or well maintained. Bedbugs can be found in homes, at certain workplaces, and in hotels. They can be transmitted through luggage, furniture, bedding, or clothing. We understand that there are no accurate statistics, but that HPD has issued more than 2,700 bedbug violations in the last year. Indeed, in March 2009, Mayor Michael Bloomberg signed a law creating a “Bed Bug Advisory Board” to study health concerns as a result of bedbug infestation.

The cases discussed here are consistent with other recent decisions holding that a tenant (or co-op shareholder) may receive an abatement of rent because of the presence of bedbugs in their apartment. As a practical matter, we believe that in response to a complaint made by an apartment occupant, a board should act quickly to inspect, identify the problem and eradicate the infestation. It is probably not enough to assert that it is the shareholder’s responsibility under the proprietary lease to maintain the apartment in “good repair.” The warranty of habitability is a potent resource for tenants to impose onto landlords the burden of remediating the presence of bedbugs. Other laws may offer relief from bedbugs for condominium occupants.

Bender v. Green:
Lawrence P. Wolf for Petitioner
Robert E. Sokolski for Respondent
Zayas v. Franklin Plaza:
The parties represented themselves