58 Misc. 2d 847 | N.Y. City Civ. Ct. | 1968
These are 53 nonpayment proceedings jointly tried. The period involved generally is for rent for the months of July through October, 1968, with varying nonpayment months alleged within that period. The defense in all these cases is the same. It alleges a general denial and, further, as a counterclaim 1 ‘ the full amount of the rent claimed because of failure of consideration on the part of the Housing Authority in that the Authority has failed to maintain safe premises in the Lester Patterson Houses; and requests, by way of relief, that this Court in equity order that whatever rent becomes due to the Authority
These proceedings involve Lester W. Patterson Houses, a low-rent public housing project operated by the landlord New York City Housing Authority pursuant to the Public Housing Law of the State of New York (L. 1939, ch. 808, as amd.; Cons. Laws, ch. 44-A). The project is occupied by 7,150 people located in the South Bronx. The tenants’ contention is that there is insufficient protection provided by the Housing Authority despite the fact that there has been continuous criminal activity within - the project, that dope addicts have been permitted to congregate therein, that there have been repeated instances of muggings, rapes, burglary and assaults, or threats thereof, all of which have placed the tenants in a state of constant fear.
The tenants assert as a defense constructive eviction and breach of a covenant of quiet enjoyment. The rule has been established in landlord and tenant cases arising in multiple dwellings that “ as to acts done in those parts of the building under landlord’s control, the landlord must answer for the manner of their use to his tenants ” (1 Rasch, Landlord and Tenant and Summary Proceedings, § 929); and it has been held that where disorderly persons congregate in the halls and elevators under the control of the landlord with the knowledge of the landlord and as a result tenants were accosted and insulted and their peace and comfort were violated, and such acts are permitted by the landlord to take place, they may ground a claim of constructive eviction (Phyfe v. Dale, 72 Misc. 383). As the court there said (p. 384): “The defendant was not obliged, by any rule of law or reason, to remain in the premises and permit his wife to be grossly insulted and the peace and comfort of his family to be rudely interrupted. The actions complained of, in so far as they were committed in that part of the premises which were under the control of the landlord, constituted a constructive eviction.” However, the Court of Appeals has required a showing of abandonment of the premises to permit the assertion of this claim. (Herstein Co. v. Columbia Pictures Co. 4 N Y 2d 117.) This is the same defense raised in Matter of New York City Housing Auth. v. Medlin (57 Misc 2d 145) and it was dismissed in the learned opinion of my colleague, Judge Wahl, followed in New York City Housing v. Crespo (Civil Ct. of City of N. Y., Bronx County, Aug. 2, 1968, L & T No. 4391, 1968, Callahan J.). It is true that the tenants should have a reasonable opportunity to vacate (cf. Krausi v. Fife, 120 App. Div. 490) and the existing shortage of suitable low rent housing may be considered upon the question as to whether a reasonable time has
The tenants now present a new theory. They now seek to apply the rule of Caldwell v. Village of Island Park (304 N. Y. 268). They argue that under this rule, when a village or municipality extends an invitation to the public to enter and use a park or playground or place of recreation, it owes those accepting that invitation a duty of reasonable care against foreseeable dangers, and this includes “ criminal and patently dangerous activities.” (p. 275). The Caldwell rule has been applied to ■accidents occurring within areas under the control of the New York City Housing Authority, where there was insufficient supervision to prevent acts committed in violation of rules specifically established by the Authority, as. in Geigel v. New York City Housing Auth. (17 A D 2d 838, affg. 225 N. Y. S. 2d 891) and Da Rocha v. New York City Housing Auth. (282 App. Div. 728, affg. 109 N. Y. S. 2d 263). However, these cases are not authority for the proposition that there is a legal duty either in respect of a municipality or the City Housing Authority to supply police protection in favor of a private person or class of persons in the absence of some relationship on the part of the defendant to the plaintiff creating a duty to use due care for the benefit of the plaintiff. This has been established in respect of a municipality in Schuster v. City of New York (5 N Y 2d 75) and has been followed in the more recent case of Motyka v. City of Amsterdam (15 N Y 2d 134) and, although with a reservation as to “ the injustice of the rule and its incongruity under modern conditions ”, in Messineo v. City of Amsterdam (17 N Y 2d 523). (See, also, Riss v. City of New York, 22 N Y 2d 579.) There is thus no basis for the tenants’ argument of any duty by analogy in respect of the New York City Housing Authority under the present state of the law. There is no precedent for a duty on the part of the landlord to provide police protection upon which to base a tort claim for the tenants in the absence of a covenant in the lease or statute, and this applies to the New York City Housing Authority in its landlord and tenant relation.
There has been a program instituted by the New York City Housing Authority whereby some police protection is afforded. The voluntary assumption of services by a landlord does not create “ a duty nor imposes an .obligation ” upon the landlord “ to continue doing so in perpetuity” (Fogelson v. Rackfay Constr. Co. 300 N. Y. 334, 340). Even if the rule that a duty voluntarily assumed be properly exercised can be applied (as in
The tenants in their memorandum of law state, “ It should be noted that the tenants are not asserting that they need an increase of ‘ x ’ number of policemen; if more policing isn’t feasible, other steps could be taken such as better lighting, locked outer doors etc. Tenants simply assert that, so long as reasonable measures have not been taken, they are entitled to money damages for the psychic and emotional injury which the Housing Authority’s breach of duty proximately causes in them.”
The tenants have been in a constant state of fear because of the criminal activity in the project. The court cannot and has not the power to determine the specific security measures that should be taken in addition to those that have been adopted. But the testimony of the tenants as to the presence of “ strangers ” in the halls and elevators, of dope addicts congregating on the grounds of the project, that muggings and assaults have occurred from time to time, that the police force is “ invisible, ” that the adjacent Mott Haven Houses have better and more adequate protection, should be given consideration by the Authority. It is to be noted that under subdivision 5 of section 402 of the Public Housing Law the Legislature has empowered the housing police ‘ ‘ to preserve the public peace, prevent crime, detect and arrest offenders * * * disperse
unlawful or dangerous assemblages and assemblage which obstruct free passage; protect the rights of persons and property ’ ’. This is a matter of administration and legislation. The court is without power to determine the administrative and budgetary requirements involved, and the legislative-executive decisions as to how the resources of the community may be deployed for the proper protection of the people.
Accordingly, the court finds judgment for the landlord; counterclaims dismissed.