conduct the repairs and take the proper precautions, and that, if necessary, defendant
would pay for mold testing by a certified company. Defendant, in its letters, also sought
access to the apartment to conduct repairs for the mold, among other repairs. After
plaintiff commenced HP and DHCR proceedings, defendant was given several days of
court-ordered access, and conducted repairs. The record reflects that thereafter, without
notifying defendant, plaintiff hired a mold removal company to remediate mold and
conduct an inspection, [*2]and incurred other expenses
allegedly relating to the mold issue. Following the trial, the Civil Court dismissed the
action, finding that plaintiff had failed to notify defendant of the issue before incurring
expenses, and that plaintiff was not "reasonable and cooperative in giving [defendant]
access to the apartment in order to correct the alleged mold problem."
When a landlord has willfully refused to repair habitability impairing conditions
(see Real Property Law § 235-b), tenants have a right to arrange for those
repairs to be done and then recoup the reasonable cost of those repairs (see Katurah
Corp. v Wells, 115 Misc 2d 16, 17 [App Term, 1st Dept 1982] ["After tenant affords
landlord due notice of a condition falling within the scope of the warranty of habitability,
and upon landlord's failure to remedy same, the tenant may undertake to remedy that
condition and is entitled under the warranty (of habitability) to recoup from the landlord
the reasonable cost incurred in remedying the habitability impairing condition"]; see
also Missionary Sisters of Sacred Heart v Meer, 131 AD2d 393, 397 [1987]). The
burden of proof is on the tenant to prove the breach of the warranty of habitability and