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The Subject Is Bedbugs: Part 1

Posted by attorney Steven Smollens

THE SUBJECT IS BEDBUGS I. THE CIRCLE OF LIFE: PAST GENERATIONS EVERYDAY EXPERIENCE RETURNS TO BE COMMONPLACE New York City announced on July 28, 2010, a new strategy to implement in the battle against the bedbug. A matter of interest to persons facing both bedbugs and a court case is learning that once before, nearly one hundred years ago, lawsuits involving bedbugs were commonplace.

Then, suddenly, all but disappeared. Along the way, as a community we lost the skills involved in combating the bedbug and enforcing legal claims. This guide, which may be posted in several parts, will try to shed light on the history of the bedbug in New York and how New York Courts responded to the bedbug in the past and present. Along the way, the guide will try to learn from the beginning a subject once commonly understood but long forgotten.

Bedbugs as a topic of litigation in New York, was once common between landlord and tenant, as was then the insect itself. The controversies often were engaged in after the tenant had vacated a dwelling with a remainder of rent not paid to the landlord. The landlord's claim advanced in a plenary proceeding for past rent due and not paid, was litigated in any trial court of original jurisdiction. The only tenant defense available in that era was grounded in the notion of Constructive Eviction. Sometimes, those disputes involving claims for monetary damages for less than $200 were not finally determined until the battling opponents had made their way from a trial court to the Appellate Division. Along the way the law of Constructive Eviction was helped along by bedbugs and the dueling over which party, landlord or former tenant, was entitled to the rent. Along the way, the decisions of the trial and appellate courts preserved windows into that by-gone (gaslight) era for us to peer through.

Into those windows we see how lawyers and judges sought to figure out how to determine damages in the absence of a warranty of habitability (and how close some of those determinations are to some in the modern era we are familiar with.) The notion that we 21st century people must become legal anthropologists, is supported by the intriguing similarities with the current bedbugs plague intersecting the old-time struggles of nineteenth and early twentieth century New Yorkers. Although the ancient cases dealt with finding facts that would warrant the tenant abandoning the home, most of our modern litigation will involve disputes where the tenant has not moved out from the home and the landlord seeks the return of the possession by means of a summary proceeding. Modern tenants faced with the infestation of bedbugs are allowed to withhold rent from the landlord, hold onto their apartments and defend the right not to pay rent because of the advent of the "Warranty of Habitability".

Due to eradication of the pest, bedbugs became removed from the legal arena, and no one litigated a landlord and tenant bedbug dispute for scores of years. In fact, other than the familiar goodnight message 'night, night, don't let the bedbugs bite', not many post-1920 Americans were intimately familiar with the once every day and everyplace bedbugs. Nevertheless, the insect has returned. Bedbugs have come back to bite at night. The need to know about the respective rights, responsibilities and liabilities of landlord and tenant contesting issues of rent liability, possession of the rented premises, bedbug eradication and warranty of habitability is urgent. II. THE PEST ITSELF, WHERE DID IT GO, WHY IT IS BACK The Bedbug is an animal, a type of arthropod, (the largest phylum of animal life), it is an insect, of the order Heteroptera (the so-called 'true bugs') a member of the family Cimicidae, and sometimes goes by the name of Cimex lectularius. The bedbug, due to evolution, and we (that is human beings) are different species of animal inextricably linked.

Wherever humans have lived (cave or city, hotel or mansion, tenement flat or luxury high-rise) the bedbug has found us to be a perfect host for a nighttime meal of our blood. The insect is drawn to us at night, at our most vulnerable time of day, because we are warm and exhale the vapor of carbon dioxide while we are asleep. Bedbugs are industrious opportunists. One egg laying capable Cimex lectularius hitchhiking along with a potentially new dinner companion, may quickly establish a colony of young ones, who by nature, eat as a family on the offer of human being dished up nightly. A well-fed bedbug will skip ten days between meals. The bite appears as an ordinary small insect bite, not easily able to be definitely linked to bedbugs, without extrinsic evidence such as bedbug molts, actual captured insects and other telltales. Pest eradicators determine the presence of bedbugs mostly from observation of its barely visible waste.

An allergic person may have such a severe reaction to the insect bites that will leave the need to detect other proof as a besides the point exercise. A notorious case of a very bad reaction to bedbugs where the victims were guests in a motel leads to a lawsuit that has helped shape the modern view of how to measure punitive damages. That case also illustrates the jeopardy of not going for the professional extermination once one knows there are bedbugs in the building. The nice thing to say about our unwanted dining mate is that it is not believed to be a disease vector. That is, the bedbug is not known to carry a disease, as do many other insect pests, many people will not get a reaction to being bitten, and because of that, New York State has not developed a strategy for dealing with the modern bedbugs outbreak.

Bedbugs join us at home, in particular in our bedrooms often by being carried home in or on our luggage from a place of travel, like a hotel (a place where the ordinary traveler has no control over insect eradication), or brought aboard by bringing home a found piece of street or purchased thrift shop furniture, or a new-reconditioned mattress (New York State has not developed standards for safety involving reconditioned mattresses on the notion that compliance would make the product not affordable and deny people who may only have means to purchase a reconditioned mattress the chance to do so), or because someone else living nearby carried home the bedbugs, and because of the traveling skills honed over millions of years of practice, walls, floors and ceilings in a building pose are not an obstacle but a means to spread lineage and increase the extent of the progenitor's brood. Insect extermination techniques long used around the world were abandoned because of harmful effects on the environment and upon us. Along with a dedicated campaign against the common cockroach, bedbugs lost hold upon its human host and essentially disappeared. That is the explanation for the loss of continuity in landlord and tenant litigation where bedbugs were the bone of the contention. Other factors also aided in the loss of our experience with the nighttime pest.

We changed our styles in furniture, mostly abandoning a long association with wooden fashioned headboards (that offered many nooks and cracks for hiding sleeping bedbugs) and began to use metal framed beds without headboards. We continued to hunt down the cockroach. Bedbugs were so much part of our collective past that only a few years ago American pest control companies were called out to 1 or 2 bedbugs cases per year, but now in that number per week. It all happened very quickly and no one was ready to deal with the return of the bedbugs. Among the facts to know is that the bedbugs in the home is not a by-product of a messy home. Bedbugs are an infestation insect, so the sooner the affected person recognizes that there is an infestation, the sooner it can be controlled. There are almost as many true ways for dealing with bedbugs as there are false ways but the false ways are likely more known.

(C) Steven W. Smollens 2007, 2010.

Additional resources provided by the author

Preventing and Getting Rid
of Bed Bugs Safely

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