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Barrister
Barrister, Lawyer
Category: Real Estate Law
Satisfied Customers: 22391
Experience:  14 years real estate, Realtor. Landlord 24+ years
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I, my wife and my three children were renting a house in Westchester

Resolved Question:

I, my wife and my three children were renting a house in Westchester NY. After a month my 6 year old who has asthma started having breathing problems. At first we thought it was just a series of colds but then we discovered mold all through the house. We informed the landlord but he said there was mold but it was not harmful we of course hired a industrial hygenist who came and inspected the home he found mold growing on furniture in the kids playroom and on the side of refrigerator and many other places. he advised us to vacate the premises ASAP for the sake of our childrens health. My childrens well being is more important than anything so we broke the lease. That was 3 months ago now it looks as if our landlord is taking legal action because we broke lease agreement. We spent a small fortune relocating and i had to uproot my kids it was just a nightmare. we need advice please.
Submitted: 7 months ago.
Category: Real Estate Law
Expert:  Barrister replied 7 months ago.
Hello and welcome! My name is XXXXX XXXXX X will try my level best to help with your situation or get you to someone who can.
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Is the landlord suing you for breaching the lease agreement?
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Do you still have the results of the mold tests that show the unhealthy levels of mold?
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Do you have any medical reports for your child where the doctor indicated that the symptoms appear to be mold spore exposure related?
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Thanks
Barrister
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Customer: replied 7 months ago.

Yes for breaking the lease.


 


We do have the results of the mold test in a full report by an independent inspector and he took the mold to an independent lab as well.


 


I don't have the 3rd item currently, by potentially could get that because we had to take our son to the allergist during that time and his symptoms got worse.

Expert:  Barrister replied 7 months ago.
Ok, under NY law, the landlord has a legal duty to provide a dwelling that is free of dangers under the "implied warranty of habitability". Under this law (NY RPL 235-B) it states that:
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"In every written or oral lease or rental agreement for residential premises the landlord or lessor shall be deemed to covenant and warrant that the premises so leased or rented and all areas used in connection therewith in common with other tenants or residents are fit for human habitation and for the uses reasonably intended by the parties and that the occupants of such premises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety. When any such condition has been caused by the misconduct of the tenant or lessee or persons under his direction or control, it shall not constitute a breach of such covenants and warranties."
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What this means is that if there are conditions that are hazardous to a tenant's health, and the landlord doesn't take immediate action to cure them once he has been notified, then the tenant is justified in abandoning the lease contract and would be excused from further performance.
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It is clearly documented that exposure to high levels of mold spores can cause flu like symptoms in healthy adults and can be life threatening for individuals with breathing problems like asthma or COPD.
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With that said, if you have proof of the abnormally high mold levels, pictures, and copies of any communications or correspondence with the landlord where you notified him about the problem, this can all be used as evidence to defend your vacating the dwelling and show it is not a breach on your end, but rather on the landlord's. I would also try to get some type of affidavit or sworn statement from the mold inspector as to what he found and how he recommended that you vacate immediately. If possible, I would also try to get something from your child's doctor about his respiratory problems since he lived there and that they have gotten better since you moved.
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I don't think with your evidence you will have a hard time convincing a judge that you were justified in terminating the lease contract considering the potentially life threatening conditions to your children.
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Thanks
Barrister
Customer: replied 7 months ago.

okay thank you Barrister i assume you would advise getting the services of a attorney to help with this we received a summons yesterday and my wife is stressed to the max by this we have 20 days to reply.

Expert:  Barrister replied 7 months ago.
What court are they suing you in? Small Claims, District, County?
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How much is he suing for?
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Thanks
Barrister
Customer: replied 7 months ago.

supreme court of the state of New York, County of Westchester and for $10500

Expert:  Barrister replied 7 months ago.
Ok, then yes, you would need to get an attorney involved to represent you. If he was suing you for under $5K in small claims court, I would say that you could represent yourself because small claims is a lot less formal. But since this is the Sup Ct. you would have to comply with all the same rules and regulations that an attorney would have to if you represented yourself.
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So if you aren't familiar with drafting Answers, filing briefs, conducting discovery and doing oral arguments, then yes, I would recommend that you hire private counsel to defend. You don't want to try to represent yourself and lose a winning case on a technicality.
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Thanks
Barrister
Barrister, Lawyer
Category: Real Estate Law
Satisfied Customers: 22391
Experience: 14 years real estate, Realtor. Landlord 24+ years
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