209 FMC LLC v. Merrick Wilson, Respondents-Tenants. (2026)

Petitioner-Landlord commenced this nonpayment proceeding in May 2026 seeking rental arrears in the amount of $5, 508.00 for the period of February 2026 through May 2026. Respondent's monthly rent is $1, 377.00.

On July 6, 2026, the Petitioner made an application to have the petition amended to include the rent for the months of June and July, bringing the total arrears to 8,262.00. Respondent asserted a warranty of habitability defense asserting he did not have heat. The matter was adjourned for trial.

A trial was held on July 30, 2026. Petitioner was represented by Mathew Aqeel, Esq of Law Office of Mathew Aqeel, Esq. Respondent appeared pro se.

RESPONDENT'S TESTIMONY

The Respondent testified that he had been without heat since December 2025 during which he used a space heater and his stove to keep warm  ¹ . Respondent testified and showed text messages that he sent to the petitioner regarding the heat to which the petitioner did not respond via text. He also testified that he left during the month of December to live at his home in Jamaica, which he does often but also because he did not have any heat  ² . Furthermore; he testified that because of the absence of heat in Respondent's apartment that made him send his two daughters, who he has custody of, to live with their mothers.

He testified that he called the petitioner in December of 2025 to complain about the heat issue. He further stated that maintenance occurred the same month, but the heat issue was not resolved. He then stated maintenance returned in February 2026 and during this visit maintenance replaced all the radiator valves in Respondent's apartment, but the Respondent stated the heat still did not work after. Respondent then testified that after the valves were replaced gas fumes were emitted from his radiator, which resulted in him calling the Fire Department.

Finally, the Respondent testified that he filed a report with the Building Department, who was supposed to come out to his apartment but never did.

PETITIONER'S TESTIMONY

a. Witness Morat Leshinsky — Landlord

Petitioner-Landlord, Leshinsky testified that the Respondent always had heat. He stated that no one else in the building had heat issues  ³ . He testified that there is one boiler that supports all the units, and that often residents complain that there's too much heat. He testified that because some of his residents rely on Section 8 payment, he undergoes inspections every single month, none of which he has failed for lack of heat.

Additionally, Petitioner's witness Leshinsky testified in response to the respondent's testimony about the Fire Department's appearance at the building that the Fire Department came because the boiler in the building was overworking and that it was providing too much heat, to the building not that there was a lack of heat. He further testified that prior to this case, in October 2025, he brought a non-payment petition against the Respondent wherein the respondent raised a warranty of habitability defense, but, significantly, the Respondent never mentioned he had an issue with lack of heat. He testified further that that case concluded in January 2026, whereby the Respondent consented to a final judgement of $3,589.00 still never raising lack of heat  ⁴ .

b. Witness - Mr. Hernandez

Petitioner's second witness was Mr. Hernandez, a HVAC contractor. In pertinent part, his testimony was consistent with witness Leshinsky Petitioner's position that Mr. Wilson's unit had heat. Mr. Hernandez testified that he and his staff were hired by the Petitioner to replace the valves in the entire apartment building. He stated that when he entered the premises, he used a thermal software machine to gauge the temperature of the building, and he further testified that the temperature was between 70 and 71 degrees. He also testified that both before and after the repairs were completed in the building -including new valves in the Respondent's apartment — that he checked to ensure that heat from the boiler in the basement rose throughout the entire apartment building.

CONCLUSIONS OF LAW

The law provides that a landlord is not required to ensure that the premises are in perfect or even aesthetically pleasing condition. "He does warrant, however, that there are no conditions that materially affect the health and safety of the tenant" (Park West Management. Corp v. Mitchell, 47 NY2d 316 [1979]). An abatement based upon the implied warranty of habitability pursuant to RPAPL § 235-b protects against conditions that materially affect the health and safety of tenants or deficiencies that in the eyes of a reasonable person deprive the tenant of those essential functions which a residence is expected to provide (Ludlow Properties, LLC v Young, 4 Misc 3d 515 [Civ Ct. New York Co. 2004]; (citing Solow v Wellner, 86 NY2d 582, quoting Park W. Mgt. Corp. v Mitchell, 47 NY2d 316). The warranty of habitability is not intended to be a complete defense, but rather the tenant seeks an abatement of all or a portion of the unpaid rent due to the defective conditions of the premises. A complete rent abatement is inappropriate where the tenant remains in possession (Mateo v Anokwuru, 64 N.Y.S. 3d 453 [App. Term, 1st Dep't 2017]). In determining the amount of the rent abatement, the Court must also consider the "[e]ffectiveness of [the] steps taken by the landlord to abate those conditions." (2590 35th St., LLC v. Veleva, 160 N.Y.S.3d 736 (App. Term, 2d, 11th & 13th Jud. Dists. 2022).

In determining damages for a violation of the warranty of habitability, the Court must "weigh the severity of the violation and duration of the conditions giving rise to the breach as well as the effectiveness of steps taken by the landlord to abate those conditions" (100 W 174 LLC v Haskins, 45 Misc 3d 1222(A) [Civ Ct Bronx Co. 2014] (citing Park West. Management. Corp v. Mitchell, 47 NY2d at 329; Elkman v Southgate Owners Corp., 233 AD2d 104 [1996]). However, the landlord must have either actual or constructive notice of the breach (Spatz v Axelrod Management Co. Inc., 165 Misc 2d 759 [Civ Ct. 1995]. The implied warrant of habitability imposes three (3) requirements regarding the condition of the premises. The premises must be (1) fit for human habitation; (2) fit for the uses reasonably intended; and (3) may not subject the occupants to the conditions that are dangerous, hazardous, or detrimental to safety (RPL § 235-b. See generally Goldhirsch v. St. George Tower and Grill Owners Corp., 142 AD3d 1044, 37 N.Y.S.3d 616 (2d Dep't 2016). A rent abatement will not be awarded where the landlord was unaware of the defective conditions, nor for the period where the tenant was uncooperative with the landlord's efforts to make the repairs.

The Appellate Term for the Second, Eleventh ab Thirteenth Judicial Districts has held that to prevail on warranty of habitability claim the Tenant "must offer proof as to the dates, severity and duration of the conditions complained of and show that notice of the conditions was given to the landlord" (See Bloorian v. Pittman, 146b N.Y.S. 3d (App. Term, 2d, 11th & 13th; EB Mgmt. Props., LLC v. Maruf ). The Tenant has the burden of demonstrating the extent of the defective conditions and adequate proof to compute "the appropriate amount of damages." Ulukaya v. Pan Am Equities, 126 N.Y.S. 3d 300(App. Term, 1st Dept. 2020; 20-220 W. 26 LLC v. Carney, 119 N.Y.S.3d805 (App.Term 1st Dept, 2019). The party asserting the defense will typically introduce photographs and other documentary proof to corroborate the testimony describing the defective conditions. (See generally RGB Mgmt. Corp. v. D2D Bridgemarket Assoc., LLP, 2020 NY Misc. LEXIS 6085 (NY Cnty, Sup. Ct. Sept. 15, 2020).

After a review of the evidence produced at trial, this court finds that respondent has not met his burden of proving that the landlord breached his warranty of habitability. The respondent failed to demonstrate that there was no heat during the early months of winter 2026. Moreover, the evidence established that when the Petitioner landlord received messages from the Tenant about the heat he attempted to address same. Also, the court notes that the Respondent had no corroborating evidence to support his assertion that there was no heat in the apartment. Indeed, the respondent did not provide and pictures of a "cold" thermostat, no witnesses regarding displacement of him or his children because of lack of heat and no documents from the building department or fire department indicating a lack of heat in his apartment. The court also took judicial notice of a prior case from October 2025 that concluded in January 2026 wherein the respondent never asserted lack of heat even though he asserted a warranty of habitability defense about another issue in the apartment.

Thus, judgment for Petitioner in the amount of $8,262.00. The warrant of eviction is stayed until October 26, 2026, to give the respondent an opportunity to pay the outstanding arrears.

Dated: September 24, 2026

Mount Vernon, New York

HON. NICHELLE A. JOHNSON

City Judge of Mount Vernon

FOOTNOTES

1.   It should be noted that he also stated during his testimony that did not have heat for the 2 years.

2.   Court was unable to determine if Respondent's move to Jamaica was due to annual travel or a result of heat conditions.

3.   Petitioner -Witness Leshinsky offered unnotarized letters from other tenants in the same building saying that they had no heat issues. The court did not consider these letters as evidence because they were not notarized but took the testimony of witness Leshinsky.

4.   The court takes judicial notice of the prior preceding LT-1724-25.

Nichelle A. Johnson, J.