Court Declines to Award Abatement Sought Due to Mold, and Requires Extensive Proof for Protection Under the Safe Harbor Act

Nikolaos Preponis, of Kucker Marino Winiarsky & Bittens, LLP, successfully defeated a tenant’s claim seeking a 100% abatement on over $50,000 due in back-rent. Tenant claimed landlord had breached the warranty of habitability as a result of there being mold in the apartment. Nikolaos argued at trial that the abatement should not be granted because the landlord attempted to obtain access numerous times and tenant failed to provide access. The judge agreed and awarded the landlord over $35,000, further entitling landlord to its attorneys’ fees as the prevailing party. Moreover, the judge issued a judgment of possession as against the tenants were they to default on the rent.

Equally important, amidst the current pandemic, in issuing both a money judgment and a possessory judgment, the Court stated that the tenant bears the burden of proving protection under the Safe Harbor Act and the CDC eviction moratorium. Tenant in this case failed to show unemployment documentation, public assistance documentation or that he received a stipend from the Federal government, and thus was not granted the protection. Tenant only provided a self-serving statement that he stopped working in March 2020 which the Court found to be insufficient to prove his burden.