Bed Bug [Litigation] Infests The Courts

Over the last several years litigation relating to bed bugs has resulted in many decisions by our Courts. The proceedings raised issues relating, among others, to the warranty of habitability; causal connections; duty to mitigate and remediate; abatement of rent; right of access; cost sharing and shifting; proof of injury; and the scope of legally-cognizable damages.

A few examples follow:

Davila v. Sleepy's, LLC, 2016 NY Slip Op 06112 (App. Div. 1st Dept. September 22, 2016) The Appellate Division, as follows, summarily affirmed dismissal of the complaint:

Plaintiffs, who are members of the same family, allege that they sustained bed-bug bites after a mattress they purchased from Sleepy's was delivered to their home by Precise. The evidence submitted by plaintiffs in opposition, including deposition testimony and an affidavit of an entomologist, raises triable issues as to whether negligent actions or omissions of Sleepy's or Precise resulted in the introduction of bed bugs into plaintiffs' home, and whether such bugs caused plaintiffs physical injury through bites, as well as, consequential damages on account of plaintiffs' claimed efforts to eradicate the bug problem. The circumstantial evidence relied upon by plaintiffs in support of their claims offered a basis upon which a jury could reasonably and logically infer liability for the alleged bug infestation...On this record, however, there is no evidence from which a jury could rationally conclude that defendants engaged in conduct sufficiently extreme and outrageous to support a recovery for emotional distress or mental anguish.

Concluding that:

[W]e affirm the dismissal of the complaint solely insofar as the complaint seeks to recover for alleged psychological injury, and modify to deny the motion to dismiss the complaint insofar as it seeks damages for alleged bodily or pecuniary injury.

Bour v. 259 Bleecker LLC, 104 A.D.3d 454 (1st Dept. March 12, 2013)

The Appellate Division described the submissions in the Court below:

Plaintiff submitted both testimonial and documentary evidence supporting her claim that there was a bedbug infestation in the apartment and that she sustained bedbug bites. The absence of any medical treatment for the bites, while significant to the value of the damages sought, does not mandate dismissing the claim for personal injury damages as a matter of law[.]

Concluding that:

Plaintiff, however, failed to show that defendant's failure to maintain the property in a reasonably safe condition unreasonably endangered her physical safety or caused her to fear for her safety so as to sustain the claim for negligent infliction of emotional distress...Further, defendant's leasing of the apartment to plaintiff while aware of a bedbug history does not rise to the level of outrageous conduct required to sustain a claim for infliction of emotional distress, especially since at the time this case was filed there was no legal obligation for landlords to give a prospective tenant notice of bedbug infestation history...and defendant had been treating the condition before plaintiff moved in. For the same reason, we find that in renting the apartment defendant was not "morally culpable, or actuated by evil and reprehensible motives" so as to warrant punitive damages...Nor did defendant engage in pervasive or grave misconduct of a quasi-criminal nature affecting the public in general[.]

85-87 Pitt St., LLC v. 85-87 Pitt St. Realty Corp., 83 A.D.3d 446 (App. Div. 1st Dept. April 7, 2011)

The Appellate Division described the prior proceedings:

[Supreme Court] granted defendants' motion to dismiss the causes of action alleging fraudulent inducement, fraudulent misrepresentation and fraudulent concealment, unanimously affirmed, with costs.

Concluding that:

The contract contained a merger clause setting forth that plaintiff accepted the building "as is" after having had an opportunity to inspect the premises. The provision specifically disclaimed reliance on any representations as to the physical condition of the building. Thus, the merger clause extinguished any claims arising from defendants' alleged misrepresentations that the building did not have a bedbug problem...A bug infestation is not a matter peculiarly within a seller's knowledge that requires disclosure by the seller. An infestation could be discovered with reasonable diligence and an inspection of the premises[.]

Kane v. SDM Enters., Inc., 125 A.D.3d 939 (App. Div. 2d Dept. February 25, 2015)

The Court summarized the allegations of the complaint:

[D]efendant SDM Enterprises, Inc....rented an apartment to the plaintiff knowing that it was infested with bedbugs and without informing the plaintiff of the infestation. The complaint further alleges that SDM's conduct was intentional and demonstrated a "reckless disregard" for the plaintiff's health and property, and that SDM's conduct in failing to inform the plaintiff of the infestation and in failing to eradicate the bedbugs violated the Administrative Code of the City of New York[.]

Defendant's contentions in Supreme Court:

On its motion for summary judgment limiting the plaintiff's damages, SDM contended that the plaintiff failed to make diligent efforts to mitigate her damages. Specifically, SDM asserted that, on July 14, 2011, it offered the plaintiff the opportunity to vacate the apartment without any repercussions and with a full refund of the money that she had already paid pursuant to the lease. SDM asserted that since the plaintiff decided to remain in the apartment beyond July 14, 2011, it was not liable for any damages that the plaintiff accrued beyond that date. In support of its motion, SDM submitted the transcript of the plaintiff's deposition testimony and the affidavit of its principal, Salvatore Mendiola, which demonstrated that the plaintiff moved into the subject apartment on July 1, 2011, and that on July 14, 2011, after the plaintiff had complained to SDM about the bedbug infestation, SDM offered the plaintiff the option to forfeit the lease and to refund the plaintiff her money.

Concluding that:

Because the plaintiff alleges that she sustained injuries as a result of SDM's reckless and intentional conduct, SDM failed to establish, prima facie, that the plaintiff had the "obligatory burden to endeavor to avert [the] injurious consequences" of SDM's conduct, i.e., a duty to mitigate damages[.]

Perez v. Price Link Inc., 50 Misc.3d 135(A) [App. Term, 1st Dept. January 19, 2016]

The Court, as follows, summarily dismissed the appeal:

Plaintiff brought this small claims action alleging that a box spring and mattress sold by defendant was the cause of a bedbug infestation in plaintiff's apartment. Applying the narrow standard of review governing appeals in small claims actions...and giving due deference to the trial court's express findings of fact and credibility...we affirm the dismissal after trial of plaintiff's action. The record supports the conclusion that plaintiff failed to establish any "causal connection" between any act or omission by defendant, and the infestation.

Carvajal v. Selechnik, 48 Misc.3d 128(A) [App. T. 1st Dept. June 30, 2015]

The Court summarily held that:

On a nonjury trial, the decision of the fact-finding court should not be disturbed unless the court's conclusions could not have been reached under any fair interpretation of the evidence...Applying that standard of review here, we sustain the court's liability determination in this action seeking damages arising from a bedbug infestation in plaintiff's apartment. The trial court, as factfinder, was warranted in finding that defendant was partially liable for plaintiff's damaged furniture due to its failure to "timely eradicate said infestation." Insofar as defendant argues that plaintiff's remedy for the bedbug infestation should be limited to damages arising from a breach of the warranty of habitability, this contention is without merit[.]

Gawad v. Aviad, 37 Misc.3d 126(A) [App. T. 2d Dept. September 19, 2012]

The Court described the prior proceedings:

In separate small claims actions, Aisha M. Gawad and Natalia Ospina...who were roommates in an apartment that they rented in a multiple dwelling owned by defendant, seek to recover for, among other things, damage to their property arising from a bedbug condition in the apartment, and the return of their security deposits. Defendant counterclaims, in both actions, for, among other things, unpaid rent. After a joint nonjury trial of the two actions, plaintiff Gawad was awarded the principal sum of $1,986.78 and plaintiff Ospina was awarded the principal sum of $2,234, and defendant's counterclaims were dismissed.

Concluding that:

In our view, there was ample evidence introduced at the trial to establish the existence of a bedbug condition in the apartment, and that this condition rendered the apartment uninhabitable as of May 23, 2010 and constructively evicted plaintiffs therefrom. Thus, plaintiffs are not liable for the rent accruing beginning with June 1, 2010...and they are each entitled to the return of their respective $625 security deposits. However, plaintiffs are not entitled to recover, as damages for a breach of the warranty of habitability...the rent that they paid for the last nine days of May 2010, as defendant was not notified of the bedbug condition until May 23, 2010, and a landlord must be allowed a reasonable amount of time to correct a condition. In addition, plaintiffs are not entitled to recover any damages for breach of the duty owed pursuant to the Multiple Dwelling Law, as plaintiffs did not introduce competent proof to establish that defendant had been on notice before May 23, 2010 of the bedbug condition...Finally, no basis was shown for an award to plaintiffs of the utility charges they had incurred after May 23, 2010. Consequently, we find that substantial justice between the parties...requires that the award to each plaintiff be reduced to the principal sum...