DECISION/ORDERThe Testimony and the Evidence Petitioner-landlord, K-R Building Corp., commenced this summary holdover proceeding seeking to remove respondent, Candy Jacqueline Ceron Victorino, from the subject premises, 41-71 Denman Street, Apt. A5, Elmhurst, N.Y. 11373, alleging she committed a nuisance and maliciously or by reason of gross negligence pursuant to 9 NYCRR §2524.3(b)(NYS RSC) and 9 NYSCRR §2204.2 (a)(2)(NYC Rent and Eviction Regs), in that she substantially caused fire damage to the subject premises and other apartments in the building, as a result of repeatedly removing the smoke detectors from her apartment. Petitioner alleges respondent had removed the smoke detectors from the subject premises on at least four occasions. At trial, both parties were represented by counsel. Marino Victorino Morales, John Doe and Jane Doe did not appear in the proceeding.Petitioner called Konnie Rutman, the manager and officer of the subject premises. She testified that respondent Ceron became the tenant of record after her mother had moved out over 10 years ago. She stated that on the morning of December 3, 2016, on or around 3:30 a.m., she received a phone call alerting her of a fire at the building 41-71 Denman Street, Elmhurst, N.Y. 11373. When she arrived, she noticed the lobby and four apartments were damaged, one of which was respondent’s apartment. Petitioner introduced a fire incident report reflecting the incident occurred on December 3, 2016 at 2:28 a.m. and origin of the fire was in the kitchen of apartment A5, respondent’s apartment. (Petitioner’s 5). She stated that whenever she gave respondent a lease renewal she would inspect the apartment to see if respondent had a smoke detector and on each occasion she noticed it was missing. She testified that on each occasion the smoke detector was removed from respondent’s apartment, she would require either respondent or her boyfriend, Elias Reynoso, to sign an “acknowledgment” that there was a new smoke detector installed. (Petitioner’s 7, 10(b), 10(c), 11, 12, 14(g), 15(a)).A review of the “acknowledgment” reflects that is a fill in form, which states:To: _This is to acknowledge that your apartment has been installed with smoke detector and carbon monoxide detecting devices.You are to fully understand. This is to confirm that this is the tenants’ responsibility to change the batteries for smoke detector and carbon monoxide detecting devices.Tenant’s signature _ date _Please provide a copy of the key to your apt to the building manager, Konnie.Tenants who refuse to provide a key will be charged for any building or personal damages resulting from the failure to provide access to the apt.Tenant’s signature _ date _She testified that HPD issued violations in 2013, 2015, and 2016, for missing smoke detectors within respondent’s apartment. (Petitioner’s 17). One receipt from Home Depot was introduced into evidence, showing a purchase made for a smoke detector in June of 2013, (Petitioner’s 13), and many photos taken by Mrs. Rutman of the damage caused to the lobby, basement, and four apartments affected by the fire (Petitioner’s 17 a-p).On cross examination, she admitted that in the “acknowledgment” form there was no identifying information with regards to the new smoke detector installed, like model number or serial number. She stated that she is always made aware of any outstanding violations in the apartment, including the violations for electrical wiring and based on the HPD violation report, she actually installed new smoke detectors in the apartment even though the violation was for repair/replace the smoke detector. (Respondent’s B). (Petitioner’s 12 — HPD violation report). She testified that after installing the new smoke detector she would always instruct the respondent or her boyfriend that they were responsible for replacing the batteries. She admitted to printing out the case appearance detail from E-Courts and hand wrote the time and room on the appearance detail where this case was to be heard on August 9, 2017, in an effort to have other tenants come to court, because she was receiving a lot of pressure from tenants to pursue the holdover against respondent.Once petitioner rested, respondent’s counsel sought the Court make an adverse inference against petitioner for failure to call two witnesses named on the bill of particulars. An opportunity was provided by the court for petitioner to bring in the witnesses under subpoena before an issuance of adverse inference charge.Respondent called Candy Ceron to testify on her own behalf. She testified that she has resided in the apartment for about 21 years and is currently not in the apartment due to the fire that occurred on December 3, 2016. Ms. Ceron stated that since 2006 she complained to petitioner about several issues including electrical wiring. As the conditions were not resolved an inspector went to the apartment and issued violations. In 2013, respondent again had an electrical problem with the circuit breaker box that would short circuit and left her without lights for one month. She stated that when she notified petitioner of the condition, petitioner told her to repair it herself. Respondent introduced into evidence a copy of a bill from an electrician she contracted to fix the electrical wiring issue in the apartment. (Respondent’s A). She testified that in May 26, 2013 she signed the invoice and paid the electrician $650 for the work. Respondent introduced the rent receipt for May 2013 where she paid $1117, the full monthly rent, and June 2013 where she paid $467, the difference of the $1117 from the $650 paid to the electrician. (Respondent’s D & E).Ms. Ceron testified that on the day of the fire, she heard spark noises coming from the circuit box, that sounded like fire crackers. Later that day, she was home with her son and heard some rumbling outside in the hall and when she opened the bedroom door she saw dark thick smoke, so she quickly exited the building and saw her neighbors calling petitioner and the superintendent. When petitioner arrived, petitioner began to insult her, blaming her for the fire. She testified the location of where the smoke detector and carbon monoxide detector were located was too high for her to remove and introduced a photograph showing that the detectors were located on the wall above the entryway of her apartment. (Respondents F). Respondent testified that in the 14 years she has been signing leases, petitioner does not always attach the “acknowledgment form” for her to sign and that every time she has signed one of the “acknowledgment form” was not to show that the smoke detector was replaced, but rather to acknowledge a smoke detector was inside the apartment. She admitted that in 2015, the smoke detector was inoperable, but nevertheless there. Respondent introduced a video taken of the apartment after the fire, to show that the apartment was completely damaged. (Respondent’s G). She testified that her rent was reduced to $1 due to the fire and that she has paid every month directly to petitioner.On cross-examination, respondent testified that she was not sure if there were any violations for electrical wiring, but she did make complaints by calling HPD. She testified that petitioner was aware of many repair issues, but failed to address the conditions in her apartment and she was required to purchase her own refrigerator.The respondent rested.Petitioner’s witness Johnny Lam testified that he was present to testify pursuant to a subpoena. He stated that he has been the superintendent for the building for over four years and works at the building six days a week between the hours 8:00 am to 6:00 pm. He testified that he is familiar with respondent’s apartment and has gone there numerous times to install smoke detectors. He added that every time respondent needed a repair done in the apartment, he would go and would notice the smoke detector missing, so he would install a new one.On cross examination, he testified that access was provided for repairs by either the respondent or her husband. He also testified that he did remember installing a smoke detector every time he went to do a repairs at respondent’s apartment, but could not remember on what dates he went to her apartment or who would call him for the repairs and what other apartments he would service in the building.Petitioner also called Libin Jiang to testify. Mr. Jiang testified that he was present to testify pursuant to a subpoena. He testified that he is a contractor, who was hired by petitioner after the fire to do construction in respondent’s apartment. He testified that he did not see a smoke detector in the apartment after the fire.On cross examination, he could not remember the date he went to the apartment after the fire and admitted he was paid $20.00 by petitioner, to appear and testify. He further stated that he is a tenant in a building owned by petitioner.Respondent testified on rebuttal. She testified that she has never called Mr. Lam for repairs, rather she would call petitioner herself or call HPD directly. She also testified that Mr. Lam has only replaced the smoke detector once in 2013, and the only thing replaced was the batteries and not the actual smoke detector. She also added that her husband could not have given access because she had separated from him in 2012 and had an order of protection, which prevented him from being in the apartment.The Law and its Application9 NYCRR §2524.3(b) and 9 NYCRR §2204.2(a)(2) permit a landlord to commence summary proceedings to seek possession of a apartment on the basis that “the tenant is committing or permitting a nuisance in such a housing accommodation…is maliciously, or by way of gross negligence, substantially damaging the housing accommodation….”. A “nuisance,” for purposes of the Rent Stabilization Code, is a “condition that threatens the comfort and safety of others in the building” and “key to the definition is a pattern of continuity or recurrence of objectionable conduct” (Frank v. Park Summit Realty Corp., 175 A.D.2d 33, 35, 573 N.Y.S.2d 655 [1991], mod on other grounds, 79 N.Y.2d 789, 579 N.Y.S.2d 649, 587 N.E.2d 287 [1991]). The petitioner must prove more than an isolated instance of objectionable conduct, rather the conduct must be recurring, frequent, continuous or extremely dangerous. Two isolated nuisance incidents plus one vague allegation of continuous nuisance was deemed insufficient to rise to the level of “recurring and continuous.” Sydney Leasing LP v. Alishayeva 3/13/2002 N.Y.L.J. 20, col. 3 (Civ. Ct. N.Y. Co.)The court finds based on the testimony and the credible evidence adduced at trial, that petitioner has failed to establish respondent has committed a nuisance by removal of the smoke detectors. Petitioner has only been able to establish that she purchased one smoke detector, but could not even link that smoke detector being installed in respondent’s apartment. Petitioner contends that the riders she had respondent and respondent’s husband sign show that she had to replace a smoke detector for respondent’s apartment numerous times. (Petitioner’s 7). The court disagrees. Petitioner’s rider are only an acknowledgment that the tenant is aware of their responsibility to change the batteries for the smoke detectors, not an acknowledgment that a new smoke detector was being installed. Further, the riders are void of any other information of the alleged absent smoke detector or any other indicia of petitioner recording the model/make of the smoke detector allegedly installed. Petitioner also contends that the HPD violation summary report reflect violations for respondent not having a smoke detector. (Petitioner’s 17). Yet the violations literally state “repair or replace” the inoperative smoke detector in 2013 and “repair or replace” the defective smoke detector in 2015, where it can be inferred there was an actual smoke detector present. Petitioner’s mere assertion that respondent’s constant removal of the smoke detector in the apartment was what caused the fire and thus caused damage to part of the building, is unfounded. The court finds the testimony of Johnny Lam not credible. He did not testify with any specificity, his testimony at best was sketchy.Based on the above mentioned, the Court finds petitioner failed to establish its burden of proof and dismisses the proceeding.This is the decision and order of this Court, copies of which are being mailed to the parties.Dated: Queens, New YorkJune 28, 2018
