The Court of Appeals in one case, expressed the general rule that an eviction is necessary to constitute a breach of the covenant of quiet enjoyment. A diminution of beneficial enjoyment cannot support a criminal defense relying upon the breach of a covenant of quiet enjoyment. There must first be either an ouster or an abandonment. In this case, neither element is found and, accordingly, the breach of the covenant of quiet enjoyment is not well founded. There remains for consideration the reliance upon Real Property Actions and Proceedings Law Section 755, subdivision 1(a). No drug was found.
The evidence adduced at the trial fails to sustain, as a matter of law, that defense. Section 755, subdivision 1(a) provides insofar as applicable as follows: ‘Upon proper proof that a notice or order to remove or cease a nuisance or a violation or to make necessary and proper repairs has been made by the municipal department charged with the enforcement of the multiple dwelling law, the multiple residence law, or any other applicable local housing code, or officer or officers thereof charged with the supervision of such matters’.
No proof is offered to establish that there was any notice or order by any municipal department charged with the enforcement of the statutes referred to in Section 755, subdivision 1(a).
Section 755, subdivision 1(b) provides: ‘Upon proper proof of the existence of a condition that is in [72 Misc.2d 721] the opinion of the court, such as to constructively evict the tenant from a portion of the premises occupied by him, or is, likely to become, dangerous to life, health, or safety, the court before which the case is pending may stay proceedings to dispossess the tenant for nonpayment of rent, or any action for rent or rental value.’
This provision of the law was held applicable to circumstances such as the constant breakdown of elevators, infestation by rodents, inadequate heat, or hot and cold water. It was also made applicable in those circumstances where the landlord was ordered to correct the unsanitary conditions of the public corridors and stairs, and the inadequate lighting for fire passages. This section does not require that the tenants vacate the premises. In such circumstances, the court may order the rent deposited with the Clerk of the Court until such time as the condition is corrected.
It may well be that if a landlord by deliberate and affirmative action invites, encourages or permits lessees to engage in illegal and immoral conduct on the premises, such conduct can be construed to result in an endangerment to the life, health or safety of the other occupants of the building. It should be on knowledge or upon a reckless disregard of the facts.
There is no showing that the landlord deliberately or affirmatively encouraged the activity about which the tenants complain. Indeed the police witnesses testified that although they recognized some of the occupants in some of the apartments they inspected to be persons who were known to be prostitutes or were then engaged in unlawful prostitution, the police did not make any arrests at the time of their inspections. In fact, there was no testimony whatsoever connecting the landlord with the presence on the premises of these objectionable individuals. The record is patently bare of any probative evidence that in any way connects the landlord with such acts, conduct or activities. It has become a way of life, unfortunately, in this city, where such activities are rampant, and the public is informed through all media that such is the condition in all areas of economic and social echelons. One must be realistic and take judicial note of such facts. However, that is a far cry from producing probative and competent evidence to establish that those persons are of ill-repute and that landlord had knowledge thereof and remained passive. The record at bar reveals that landlord has cooperated or sought to do so with tenants to remedy this situation. Until the public authorities or the complaining tenants supply such evidence, it is obvious that any proceeding by the landlord would not be maintainable.
Whatever the public authorities are doing, e.g. as reported in the daily press, that certain buildings are public nuisances, is not applicable at bar. The landlord with a substantial investment hired a reputable rental agent to screen all applicants for rentals. No evidence has been produced to show or from which it may be inferred that rentals were knowingly made to such undesirable persons. Domestic violence was not involved.
The Court once before took note of the inability of the police in this city to curb the incipient growth of criminal activity. The landlord could not be expected to react to general statements of illegal activity or to suspicions by tenants who even upon this trial refused to identify specific individuals about whom they complained.
In short, even the wicked are entitled to their rights. The landlord here could not arbitrarily evict the alleged prostitutes and procurers. It would be unconscionable to suspend the payment of rent until social conditions in this neighborhood improve. In fact, any such determination would be confiscatory since it would necessarily occasion the inability of the landlord to meet the mortgage payments and the tax payments required in the operation of this building.
The landlord and his attorney both testified as to their desires to rid this building of any undesirable elements insofar as they were permitted by law. The landlord seemingly has demonstrated his good faith in that regard and under the circumstances in this case, a suspension of the payment of rent under Section 755 is not warranted and judgment should be directed in favor of the landlord for the relief requested.
Accordingly, the court held Final Judgment for Landlord against the 84 Respondents. Five day’s stay upon written notice of the Judgment to the Respondents or their attorneys.