The court has trouble finding reasonable cause to believe that MLR had violated a health or safety law, regulation, code or ordinance. The skimming of the garbage seems like small potatoes. DGS only cited MLR for having trash cans on the public walk. Significantly, MLR was never charged with spilling trash into the walkway or any other of the numerous city regulations dealing with trash.{**62 Misc 3d at 287}
Moreover, Brown's chief complaint that the skimming caused a repellant odor lacks supporting logic and evidence. MLR's private hauler removes the trash at regular intervals. The amount that the trash decomposes is a function of the time between trash removal dates. Consequently, the decomposition that the trash undergoes between scheduled pickups has nothing to do with whether MLR's employees skim trash off the top. If anything, the skimming allows the trash can lid to be shut which should reduce odors. Brown never offered evidence to convince the court (and for that matter DGS officials) that the intervals between trash pickup were so long as to force residents and passersby to suffer adverse health or safety issues from the odors.
Even assuming that the trash smelled from time to time, Brown must understand that no landlord, even the most capable and conscientious, can maintain a residential dwelling in a constant state of perfection. Problems arise, things break, contractors fail to perform. It is not the occurrence of defects, even serious ones, that raises issues. Rather, it is the neglect of a problem that transforms a momentary incident into a health or safety issue. The stink of garbage may be an annoyance, a nuisance and inconvenience, but the court is not sure it endangers any person's health or safety.