DECISION/ORDER 509 Amsterdam Associates L.P., the petitioner in this proceeding (“Petitioner”), commenced this holdover proceeding by filing a petition on July 21, 2017 against Therese Romero (“Respondent”), Roberto Romero (“the first Co-Respondent”), and Franklin Romero (“the second Co-Respondent”), the respondents in this proceeding (“Respondents”), seeking possession of 511 Amsterdam Avenue, Apt. 3S, New York, New York (“the subject premises”) on the basis of nuisance. Respondents interposed an answer with defenses of retaliatory eviction, breach of the warranty of habitability, and cure, and counterclaiming for harassment. The Court held a trial of this matter on June 19, 2018, June 20, 2018, October 1, 2018, and December 3, 2018, and adjourned the matter to December 31, 2018 for post-trial submissions. Petitioner proved that it is the proper party to commence this proceeding, that Petitioner has been in compliance with the registration requirements of MDL §325, that Petitioner and Respondent have been in a landlord/tenant relationship with one another, that the first Co-Respondent and the second Co-Respondent also have been living in the subject premises, that the subject premises is subject to the Rent Stabilization Law, and that, on June 1, 2017, Petitioner timely served a predicate notice on Respondents pursuant to the Rent Stabilization Law prior to the commencement of this proceeding.Petitioner’s super (“the super”) of the building in which the subject premises is located (“the Building”) testified that he has held his job title for eighteen years; that he has been to the subject premises on numerous occasions; that there was a fire in the Building on February 24, 2017 (“the fire”); that no one has lived in the Building since the fire; that a visit he undertook to the subject premises before the fire revealed that the subject premises was cluttered and congested with a lot of stuff, but he could walk through it by a walkway that was a couple of feet wide; that he saw a bed in each room and cabinets with clothes on them; that the tenant of Apt. 2S in the Building (“the downstairs tenant”), the apartment below the subject premises (“the downstairs apartment”) called to him to complain about leaks; that leaks occurred three to four times a year in the five years before the fire; that he saw water damage in the ceilings of the kitchen and bathroom in the downstairs apartment; that, in May of 2011, the leak to the downstairs apartment was a major flood; that he spoke to the first Co-Respondent and the second Co-Respondent (collectively, “Co-Respondents”); that he saw water on the floor of the subject premises; that Co-Respondents said that it was natural for water to be on the floor when you take a shower; that Co-Respondents denied that the leak was their fault; that the damage resulting from leaks ranged from blistering of paint to a flood that would necessitate changing out sheetrock; that there was another flood on October 16, 2014 that damaged the ceiling of the kitchen in the downstairs apartment; that another leak on May 3, 2015 damaged the bathroom ceiling and walls of the downstairs apartment; that the floor of the subject premises was wet when he investigated on the former two dates; that on November 19, 2015, another leak from the subject premises to the downstairs apartment occurred; that he saw a leak in the ceiling in the downstairs apartment and a wet floor in the subject premises that day; and that there was a leak into the living room of the downstairs apartment on February 21, 2017, three days before the fire.The super testified on cross-examination that there are twelve apartments in the Building; that he is not a licensed plumber; that he does not live at the Building; and that he had not received a complaint about water leaks on February 24, 2017, the date of the fire, although he was in the subject premises on that day. At Respondent’s request, the Court took judicial notice that an affidavit of the super in the Court file said that there was a complaint on February 24, 2017. The super testified that that statement in the affidavit was a mistake and that he received a complaint about water leaks on February 21, 2017. The super testified on cross-examination that Respondents said that leaks came from the apartment above theirs and that he inspected the apartment upstairs from the subject premises. The super’s affidavit, however, stated that he had not received complaints from Respondents about leaks. The super testified on cross-examination that he tried to get into the subject premises every time there was a complaint; that he couldn’t always immediately inspect complaints about water leaks; that he had keys to the subject premises to inspect there when Respondent’s weren’t home; and that he didn’t feel comfortable using the keys to get into the subject premises when Respondents weren’t home. When asked on cross-examination about the days of the week or the times about the complaints, the specific dates about which the super testified, the super testified that he did not have memory of the dates.The super testified on redirect examination that he did not feel comfortable using the keys to access the subject premises when Respondents were not home; that Respondents never complained about leaks in the subject premises after October of 2014; that he never found leaks in the subject premises coming from upstairs; and that he observed no damage in the ceiling and walls of the subject premises.The Court granted Petitioner’s application to qualify its next witness, a fire investigator (“the fire investigator”) as an expert. The fire investigator testified that he was on the New York Police Department arson and explosion squad for ten years; that he now investigates fire and explosions for the insurance industry to determine the origin and causes of fires; that he investigated the fire at the Building and prepared a report to determine the cause of the fire; that he examines the burn areas looking for area least burnt to area most burnt; that the burn patterns caused him to conclude that the fire started in the Southwest corner of the rear bedroom inside the entrance to the subject premises, as that was the area most extensively damaged; that he saw no evidence that the fire started in an electrical outlet as a removal of a plate over a receptacle showed no adverse electrical activity; that he had to shovel debris out of areas of the origin of the fire in order to inspect; that a lot of debris had been thrown down an air shaft; that he found a lighter in the debris eight feet from the origin of the fire that was not exposed to the element of a fire; that, in the absence of physical evidence, he could not say that extension cords caused the fire; that he eliminated the electricity in the Building as a cause of the fire; that he could not eliminate Respondents’ actions as a cause of the fire; that the fire marshal’s report showed that the cause of the fire was “accidental electrical”; and that the nature of his job entails a higher level of scrutiny and certainty as to the determination of the cause of a fire then the Fire Department of New York (“FDNY”).The fire investigator testified on cross-examination that the purpose of investigation was to determine the origin and cause of the fire to see if there is a potential for subrogation; that he could not determine if tenant-owned equipment caused the fire; that there were no appliances within the area of origin; that the fire was not intentionally set; that it was possible that broken wires could have been broken when FDNY moved the debris; that “adverse electrical activity” means arcing, sparking, or molten conductors; that he investigated after a fire marshal investigated; that a fire marshal overhauls debris; that items would have already been moved from their origin by the time he makes an investigation; that the lighter was not in the debris at the time of the fire; that the lighter must have been in cabinet or something else protected from the fire; and that the intact plastic on the lighter means that the lighter was not damaged.The fire investigator testified on redirect examination that extension cords are for temporary power and are not supposed to be run under carpets and that an extension cord ran behind headboard in the subject premises.The downstairs tenant testified that she is eighty-eight years old; that she lived in the downstairs apartment for fifty-six years before the fire; that she experienced leaks from 2013 to 2017 in the bathroom and in the kitchen from the third floor; that the bathroom is at a wall adjoining the kitchen; and that she tried to complain to Respondents but they would never answer. The downstairs tenant testified on cross-examination that she knocked on Respondents’ door several times and they wouldn’t answer or that Respondents would say that they did not have a leak; and that she is not a licensed plumber.Petitioner’s general partner testified that the Building was built in the 1880s; he was in the subject premises about six to nine months before the fire; that there was a substantial amount of property, such as clothes, bedding, CDs, and DVDs, strewn about; that there was a narrow path through the subject premises; and that he took a video of the Building after the fire.Petitioner introduced into evidence a video of the fire. The video shows that a joist or a beam underneath the subject premises is rotted, in distinction to a comparable joist/beam from the other apartment in the Building on the same floor as the subject premises (“the next-door apartment”), which appears to be in good condition. Petitioner also introduced into evidence a photograph of Respondents’ personal property from the subject premises taken after the fire, which includes power strips and extension cords.Petitioner’s general partner testified on cross-examination that he undertook to renovate the next-door apartment.A fire marshal for FDNY (“the fire marshal”) testified on Respondent’s case that he was a firefighter since 2001; that he is assigned to the bureau of fire investigations; that he responds to fires and investigates them for origin and cause; that he has investigated 250 fires; that he was subpoenaed; that he arrived at the Building during the fire; that he conducted interviews and took photos; that he concluded that the fire was accidental, meaning not caused by arson or a natural cause like lightning or an earthquake; that the fire started in an area of combustible material, which he concluded from the siting of a wire on a floor and a burning at a low level; and that he could not determine if the wiring that caused fire was external or internal.The fire marshal testified on cross-examination that he remembered seeing a lighter and smoking material during course of investigation; that the lighter and smoking material was not near area of the origin of the fire; that such a lack of proximity ruled out the possibility that a person who was smoking could have caused the fire, although his report was not explicit about that; that he sifted through the subject premises for several hours on the day of the fire, which entailed shoveling materials either to another room or into a shaftway; that he does not know if an outlet caused the fire; that the only thing reasonable in the area that could have started fire was electrical, although he did not know whether the cause was a surge or a short; that extension cords or overloaded power strips could have caused the fire; that, if he determines that arson, an intentional act, did not take place, he does not assign blame; and that negligence or recklessness is outside his scope of inquiry.Respondent testified that she has lived at the subject premises for forty years; that she was not in New York at the time of the fire because her husband had been sick in Ecuador; that her husband died; that, for twenty years before the fire, the ceiling in the subject premises had leak damage and mold; that the super knew about that condition; that the downstairs tenant knew about that condition; and that the condition was the result of a plumbing problem.Respondent testified on cross-examination that she left New York for Ecuador in 2013; that she came back in April of 2016; that she has owned a house in Ecuador for forty years; and that she wouldn’t know about leaks in the subject premises in 2014 or 2015 because she wasn’t there.The first Co-Respondent testified that he has lived in the subject premises for thirty-nine of his forty-one years; that, on the day of the fire, he had a meeting with the super in the subject premises concerning a light switch that did not work; that the super said that he would call an electrician; that he went for a walk and left the second Co-Respondent in the subject premises; that he got a call about the fire and rushed back to the Building where he saw the fire; that when the FDNY finally allowed him access to the subject premises for fifteen minutes, he was in disbelief and did not grab anything; he commenced an action against Petitioner, which the Court took judicial notice of, pursuant to New York City Civil Court Act §110(c), commenced by order to show cause dated March 9, 2017; that he withdrew that action by a Stipulation dated June 5, 2017 and joined another action that other tenants in the Building had commenced against Petitioner; that this proceeding ensued; that Petitioner had never sued him over leaks prior to this proceeding; that leaks were a problem in the bathroom ceiling, creating mold and mildew and more leaks toward the downstairs apartment; that the super knew about leaks; that he spoke to the downstairs tenant about the leaks; that he wanted to show her that leaks were coming from upstairs as well; and that she refused.The first Co-Respondent testified on cross-examination that he would not call the downstairs tenant a liar; that it is not true that someone spoke to her through the door; that he invited her in many times; that he could not recall the last time; that he never complained to Petitioner about leaks in writing; that he didn’t want to get into a legal action with Petitioner; that work order forms he had were burned in the fire; that water never overflowed from the tub; that he would not call the super a liar; that he doesn’t smoke; that the second Co-Respondent smokes; and that he does not allow the second Co-Respondent to smoke in the subject premises and so he doesn’t.The second Co-Respondent testified that he has lived in the subject premises for the entirety of his thirty-seven years; that Respondent and the first Co-Respondent and his cat live in the subject premises; that, on the day of the fire, he finished work at 3 o’clock in the afternoon and came home to see the first Co-Respondent and the super talking; that he took a shower and then took a nap in the living room for one-and-a-half hours; that his cat woke him up by running around frantically; that he saw an orange light; that he went into his room and saw a flame coming out of the electrical socket; that he was scared; that he tried to contain the fire by throwing water onto the closet right next to the outlet; that he tried warning his fellow tenants by yelling and screaming; and that his cat died.The fire marshal’s report in evidence said that the second Co-Respondent said that the smoke alarm-not the cat-woke him up. The second Co-Respondent testified on cross-examination that he did not say that to the fire marshal; that he tried to call 911, but he was so in the moment of trying a grasp a fire in front of him he couldn’t really think; that he was trying to find the cat; that he couldn’t get his password through on the phone because he was distraught; that there’s no landline in the subject premises; that another tenant heard him; that there is a firehouse a block away; that he is not a smoker; that he smoked once in a while before the fire; that cigarette butts in an ashtray at the subject premises weren’t his; that he doesn’t know whose they were; that he never smoked in the subject premises; that the lighter in a picture of the subject premises isn’t his; that he smokes marijuana in the bathroom and uses a pipe; that he kept a self-closing door opened with something when he yelled into a hallway; that he didn’t have electronic equipment in the closet; that there were no plugs in the outlet; and that Respondent’s lamp, that did not have a wire and was not connected to anything, was in closet.The second Co-Respondent testified on redirect examination that the fire traumatized him and gave him anxiety.Petitioner’s office manager testified that she has been employed since May of 2013; that she generally takes call about repairs; and that she received no complaints from Respondents about leaks.The super testified on rebuttal that he was at the subject premises on the day of the fire and talked to the first Co-Respondent; that he didn’t see the second Co-Respondent at the subject premises; and that he received no complaints from Respondents about leaks in the subject premises.Petitioner subpoenaed Respondent as a rebuttal witness. Respondent, although appearing by counsel, did not appear herself on the date of Petitioner’s rebuttal case. Petitioner requested that the Court draw an adverse inference from Respondent’s non-appearance.No party disputes that the fire originated in the subject premises nor that the fire had a devastating impact on the Building. The origination of the fire as such, though, does not suffice to prove that Respondents committed a nuisance. Petitioner still bears the burden of proving that Respondents caused the damage. Giga Greenpoint Realty, LLC v. Mounier, 61 Misc.3d 135(A) (App. Term 2nd Dept. 2018). The Court credits the testimony of the fire marshal and fire investigator that arson, i.e., an intentional act, did not cause the fire.Petitioner’s cross-examination of the fire marshal made the point that the fire marshal does not determine whether someone started a fire by negligence or recklessness. Petitioner also elicited evidence from the fire investigator that neither Petitioner nor any condition of the Building caused the fire. Petitioner essentially argues that the fire investigator’s absolution of Petitioner compels the conclusion that Respondents’ nuisance conduct is the only logical cause of the fire.While Petitioner makes an issue of whether one of Respondents smoked, and caused the fire that way, the evidence does not support the conclusion that anything related to smoking caused the fire. The fire investigator testified that the lighter was not in the debris in the room of the fire’s origin at the time of the fire and that the intact state of the plastic exterior of the lighter compelled the conclusion that the lighter must have therefore been protected from the fire in some type of enclosure. The fire marshal also testified that materials related to smoking were not near the origin of the fire.Petitioner also argues that the manner in which Respondents maintained extension cords in the subject premises caused the fire. The elimination of other causes such as arson, the Building’s electricity, and smoking offers some support for Petitioner’s argument, although the evidence is necessarily circumstantial. Both the fire marshal and the fire investigator could not testify for sure a specific cause of the fire.Even assuming arguendo, however, that Respondents’ maintenance of extension cords caused the fire, one accidental fire does not constitute an actionable nuisance when the extent of the tenant’s conduct concerns the use of extension cords. Vukovic v. Wilson, 245 A.D.2d 1, 2 (1st Dept. 1997), Cruz v. Davis, 20 Misc.3d 1135(A)(Civ. Ct. N.Y. Co. 2008). Cf. WAM Equity Partners L.P. v. Lyon, 11 Misc.3d 134(A)(App. Term 1st Dept. 2006)(a tenant’s “misuse” of a stove that causes one fire does not constitute a nuisance), Pamac Realty Corp. v. Bush, 101 Misc.2d 101 (Civ. Ct. N.Y. Co. 1979).Petitioner argues that the second Co-Respondent’s reaction to the fire constituted nuisance conduct. Setting aside the question of whether the second Co-Respondent’s one-time action can constitute a nuisance, the Court evaluates the reasonableness of the second Co-Respondent’s conduct to determine whether he committed an actionable nuisance. See Copart Industries, Inc. v. Consolidated Edison Co., 41 N.Y.2d 564, 570 (1977), Chelsea 18 Partners, LP v. Sheck Yee Mak, 90 A.D.3d 38, 41 (1st Dept. 2011), 9 N.Y.C.R.R. §2524.3(b). The use of the word “reasonable” as such requires the application of an objective standard. MHM Sponsors Co. v. Hirsch, 15 Misc.3d 641, 644 (Civ. Ct. N.Y. Co. 2007). While we would like to think that we would all act like model citizens in an extreme situation like a fire, the Court cannot find that a panicky and frightened reaction to a fire is “unreasonable” on any objective standard. Accordingly, the Court does not find that Petitioner met its burden of proving that the fire implicated any nuisance conduct of Respondents.Another ground upon which Petitioner urges this Court to find that Respondents committed a nuisance consisted of the leaks from the subject premises. The Court finds that Petitioner proved, by the photographs of the joist and the credible testimony of the downstairs tenant, that leaks afflicted the downstairs tenant. However, proof of leaks alone does not prove nuisance conduct. Rather, Petitioner bears the burden of proving that Respondents engaged in conduct that caused leaks, Giga Greenpoint Realty, LLC, supra, 61 Misc.3d at 135(A), 1806 Caton, LLC v. Ngyuen, 49 Misc.3d 154(A)(App. Term 2nd Dept. 2015), RSP UAP-2 Prop. LLC v. Zarka, 49 Misc.3d 1219(A)(Civ. Ct. N.Y. Co. 2015), conduct that would be in the nature of allowing an overflow of water from a sink or shower or tub or toilet. As a witness other than a tenant will of course not normally be in an apartment at the time of an overflow, Beacon 109 204-206 LLC v. Leon, 2015 N.Y. Slip Op. 32083(U),
7-9 (Civ. Ct. N.Y. Co.), Courts have commonly found that leaks result from nuisance conduct when tenants refused landlords access at the time of leaks to investigate the cause of the leaks. See, e.g., Chi-Am Realty, Inc. v. Guddahl, 7 Misc.3d 54 (App. Term 2nd 2005), affirmed sub nom. Chi-Am Realty, LLC v. Guddahl, 33 A.D.3d 911, 912 (2nd Dept. 2006), 17th Holding, LLC v. Rivera, 21 Misc.3d 55, 56 (App. Term 2nd Dept. 2008), Ocean Neck Apts. Co., LLC v. Weissman, 14 Misc.3d 21, 22 (App. Term 2nd Dept. 2006), Gallagher v. Regan, 2004 N.Y.L.J. LEXIS 1174, *12-13 (Civ. Ct. Queens Co.). In this case, Respondents did not deny the super access to the subject premises after leaks.Petitioner relies on circumstantial evidence to prove that Respondents caused leaks, to wit, the water on the floor that the super testified that he saw after leaks. In considering such evidence, the Court must consider “how much water would have to overflow from a sink or a bathtub” to result in a leak of the extent described. Beacon 109 204-206 LLC, supra, 2015 N.Y. Slip Op. 32083(U) at
