107-109 E. 88th St. LLC v Nowillo

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[*1] 107-109 E. 88th St. LLC v Nowillo 2005 NY Slip Op 51114(U) Decided on June 24, 2005 Civil Court Of The City Of New York, New York County Lebovits, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 24, 2005
Civil Court of the City of New York, New York County

107-109 East 88th Street LLC, Petitioner,

against

Luis Nowillo, Respondent, and "JOHN DOE" and "JANE DOE," Co-respondents.



55839/05



Law offices of Judith Brener, New York City (Jeffrey Goldman of counsel), for petitioner.

Barry Schwartz, New York City, for respondent.

Gerald Lebovits, J.



Petitioner commenced this holdover proceeding against respondent Luis Nowillo alleging that he committed or permitted a nuisance in his rent-controlled apartment by causing two fires, in July 2002 and in October 2004. Petitioner argues that respondent's gross negligence led to substantial damage to the premises, thereby interfering with the comfort and safety of the other tenants, occupants, and employees in the building. (See NYC Rent & Evict Regulations [9 NYCRR] § 2204.2 [a]; NYC Admin Code § 26-408 [a] [2].) Respondent, a 71-year-old man who has lived in his apartment for 47 years, argues that petitioner's electrician caused the July 2002 fire and that although respondent inadvertently caused the October 2004 fire, one fire is not enough for an eviction.

FINDINGS OF FACT

Four witnesses testified for petitioner. They all testified credibly. Respondent testified on his own behalf. The court credits respondent's testimony except as it concerned the July 2002 fire and except to the extent that he claimed that petitioner did not repair his kitchen after the October 2004 fire until after March 2005.

James Georgiano, the building manager of the subject premises, testified that respondent admitted to him that on October 16, 2004, respondent left a lit stove unattended while he took a shower and that some mail he left on his stove caught on fire. Georgiano testified that the fire spread, causing extensive damage to the ceiling, the walls, the floor, the kitchen cabinets, the apartment's electrical system, and the stove. He also testified that respondent failed to notify the New York City Fire Department. Georgiano further testified that shortly after the fire, petitioner gave respondent a second-hand stove; repaired the cabinets, the walls, and the floor; and painted the kitchen. According to Georgiano, respondent informed his assistant of the fire on October 19, 2004, three days after the incident. Georgiano testified that he inspected the apartment with the superintendent the next day and took photographs of the fire damage, admitted as Petitioner's 4 A-H. One photograph Georgiano took shows a kitchen outlet in respondent's apartment overloaded with four or more plugs and wires draped helter-stelter. (Petitioner's 4 A.) Another shows wires extending aimlessly toward the ceiling. (Petitioner's 4 B.)

Georgiano also testified that respondent maintained a fire-hazard Collyer collection of papers, mail, plastic bags, plastic containers, a book, and other items, as shown by the post-termination photographs he took in March 2005, admitted as Petitioner's 5 A-E. The photographs show a small mountain of garbage, papers, and other items on respondent's stove, among other places in his kitchen. In some places the items were piled several feet high. One March 2005 photograph also shows an electrical wire extending over his stove. (Petitioner's 5 E.)

Gary Greene was the managing agent of the premises from 2000 until 2003. Greene testified that in or about July 2002, petitioner offered to give all the tenants in the building an extra outlet in their apartments for free to accommodate one air conditioner in their livingrooms. He further testified that when respondent asked for an extra outlet in his bedroom, he told respondent that he would install one if respondent paid a rent surcharge. According to Greene, respondent refused to pay the surcharge for the second outlet but then rigged the electrical outlet in his kitchen and ran a cord into his bedroom for a second air conditioner without notice to or consent from petitioner. According to Greene, respondent used the air conditioner in his bedroom and caused an electrical short. He testified that he asked the electrician to repair the short when respondent informed him about it. He further testified that when he later came to the apartment, he could smell the effects of an electrical fire and that he saw that an extension cord was burned, frayed, had plastic wrapping, and was not made of heavy-duty wire. Finally, he testified that he did not call the Fire Department because it was not a big fire and because the electrician repaired the outlet. [*2]

Christopher Cabrera, the superintendent of the premises for the past forty years, testified that at around 6:00 a.m. on October 16, 2004, a fire began in the kitchen of respondent's apartment and that respondent put it out. He also testified that respondent told him that he went to take a shower or do something in the bedroom when the fire started and that respondent did not tell anyone in the building about the fire until much later.

Respondent testified that in July 2002, he bought two air conditioners and ran a cord from the kitchen outlet into his bedroom because he wanted to use one of his air conditioners there. He also testified that he did not want to pay petitioner an extra fee for a second outlet in his bedroom. According to respondent, he then put 4-6 additional plugs into the same electrical outlet, including a vacuum cleaner, a hair dryer, an alarm clock, and extra cords. He further testified that in inspecting his apartment, an electrician saw many wires in the kitchen outlet and that when the electrician flipped a switch in the fuse box, the fire started in the livingroom. He testified that he did not call the Fire Department. Respondent's point was that the fire would not have occurred but for the electrician's act of flipping the switch.

Respondent testified that the October 2004 fire occurred when he placed a pot of water on the stove (which he uses daily to cook), lit the pilot light, and then went to take a quick shower. He also testified that a pile of mail was on the stove and that a back draft from an open door caused the papers to catch on fire. According to respondent, he placed the mail on the stove because he has two daughters and one nephew who are physicians, and they get an "unbelievable" amount of mail. He testified that he did not call the Fire Department because he thought it was a small fire and because he put it out himself. According to respondent, he burned parts of his wrist and leg when he tried to put out the fire and was hospitalized. He further testified that he called Georgiano on the following Monday and that Georgiano came to see the apartment on Tuesday.

Respondent admitted that he left items on his stove in March 2005, but he said that he did so because he was making repairs in his apartment following the October 2004 fire. Respondent stated that the only reason for the mess was that he removed everything from his cabinets and put the various items and debris on the stove and the floor. According to respondent, he did that because after the second fire, petitioner did not give him a new stove and did not make the repairs until March 2005.

Francisco Sosa, an electrician, testified on rebuttal that petitioner hired him to make electrical improvements in the building. While he was there, he stated, somone from the building asked him to repair an electrical short in respondent's apartment. Sosa testified that respondent refused to let him into the bedroom. Sosa noted that although the bedroom door was half open, he did not see the air conditioner in the bedroom and that respondent did not tell him about it. He also testified that he changed respondent's electrical breakers and lines, but doing that did not fix the short. According to Sosa, when he flipped a switch in the fuse box, it burned the wire connecting the air conditioner in the bedroom, causing a small electrical fire. Sosa testified that the fire would not have occurred if respondent had not plugged the air conditioner in the [*3]bedroom into the kitchen outlet.

Given the testimony, the court finds that respondent caused the July 2002 fire when he shorted out the electrical outlet in his kitchen by plugging his air conditioner into the same outlet as the other 4-6 plugs, by failing to give the electrician access to his bedroom, and by failing to inform the electrician that he plugged in an air conditioner into his kitchen outlet. The court finds that although the electrician's act of flipping a switch to isolate the short might have precipitated the July 2002 fire, the proximate cause of the fire was respondent's gross negligence in overloading his kitchen outlet and failing to tell the electrician what he had done.

The court also finds that on October 16, 2004, respondent caused the second fire by leaving a lit stove unattended with a pile of mail on the stove to take a shower. The resulting fire caused him to receive burns on his hand and leg, requiring medical treatment. The fire damage was extensive, substantially damaging the walls, floor, ceiling, cabinets, and stove, as shown in the photographs taken three days after the fire. (Petitioner's 4 A-H.)

The court additionally finds that after the July 2002 fire, respondent continued to allow his apartment to be a fire trap. Respondent overloaded the kitchen outlet by inserting four or more plugs into that outlet even after the first fire in July 2002, as shown in petitioner's October 2004 photographs. (Petitioner's 4 A.)

The court further finds that respondent's post-termination conduct shows respondent's continuing gross negligence interfering with the comfort and safety of the building's other occupants. Respondent maintained a fire-hazard Collyer condition by leaving numerous flammable items on his stove, which he uses everyday to cook, as shown in petitioner's March 2005 photographs. (Petitioner's 5 C-E.) Despite the October 2004 fire, he continued to leave papers on his stove and a wire draped over his stove.

The court finds, moreover, that petitioner made the necessary repairs shortly after the fire, as shown by Georgiano's March 2005 photographs, which show a refurbished stove, painted walls, and repaired or new cabinets. (Petitioner's 5 C-E.) Thus, respondent had no need to empty out his cabinets. Respondent's Collyer condition had nothing to do with his emptying out his cabinets.

CONCLUSIONS OF LAW

As this court has held, "[a] nuisance is a continuous or persistent condition that threatens the comfort and safety of neighboring tenants or other building occupants and which is likely to recur." (Goodhue Residential Co. v Lazansky, 2003 NY Slip Op 51559 [U], *7-8, 2003 WL 23148836 [Hous Part Civ Ct, NY County]; see also Metropolitan Life Ins. Co. v Moldoff, 187 Misc 458, 459 [App Term, 1st Dept 1946, per curium]; Pamac Realty Corp. v Bush, 101 Misc 2d 101, 102 [Civ Ct, NY County 1979].) No perfect definition of nuisance exists; each case must be decided on its own facts. (Metropolitan Life Ins., 187 Misc at 459.) [*4]

In Pamac Realty, the court held that an isolated incident in which a tenant caused a fire by negligently dropping a lit cigarette on his mattress does not constitute a nuisance. The court found that "a single incident is insufficient to establish that the tenant is or has created a nuisance." (101 Misc 2d at 102.) In Metropolitan Life, similarly, the court held "that a mere isolated instance of an attempt at self-destruction is not and does not constitute a nuisance." (187 Misc at 460.)

In contrast, respondent committed three acts of gross negligence: overloading an electrical outlet in July 2002, leaving a lit stove unattended in October 2004, and covering his stove with numerous flammable items in March 2005, all in a span of less than three years. Respondent's acts are persistent in that he caused two separate fires and in that he maintained post-termination conditions capable of producing a third fire.

Respondent caused the first fire by intentionally overloading his kitchen outlet so that he would not have to pay a surcharge to put another outlet in his bedroom for his air conditioner. He also refused to let the electrician into the bedroom and did not tell the electrician that his air conditioner was plugged into the same outlet in the kitchen, even though he wanted the electrician to fix a short. Respondent caused the second fire when he left a lit stove covered with papers to take a shower. As a result, the second fire destroyed the stove and damaged the cabinets, ceiling, walls, and the apartment's electrical system. Furthermore, as shown from his post-termination conduct of March 2005, the court must reject respondent's protestations that the July 2002 fire was an accident or the electrician's fault. As shown in the March 2005 photographs, respondent strewed papers and other flammable items on his stove, which he stated he uses daily to prepare meals, thus risking a third fire.

To establish gross negligence, the petitioner must prove that "the actor has intentionally done an act of unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and has done so with conscious indifference to the outcome." (Matter of NYC Asbestos Litig. v Westinghouse Electric Corp., 89 NY2d 955, 956-957 [1997, mem] [internal quotation marks omitted].)

Respondent's acts were grossly negligent. He consciously and deliberately overloaded the electrical outlets in his apartment, which caused the July 2002 fire. He then refused to let the electrician into his bedroom so that the electrician would not see his air conditioner. Furthermore, when the electrician tried to correct the electrical short, respondent failed to tell him that his air conditioner was still plugged into the same outlet as the other 4-6 plugs.

Respondent argues that petitioner's electrician caused the July 2002 fire when he worked on the electricity in the apartment. But respondent's acts were the proximate cause of the fire. Proximate cause is a "substantial cause" of an event. (E.g. Murray v NYC Hous. Auth., 269 AD2d 288, 289 [1st Dept 2000, mem] [finding that proximate cause was not Housing Authority's negligence in failing to repair the door but plaintiff's decision to place a heavy, unsecured door upright, and unbraced, in bathroom doorway].) The court finds that respondent's acts were a [*5]substantial cause of the July 2002 fire.

A third person's intervening conduct can sever the causal link of a respondent's acts if the conduct "is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendants's conduct." (Derdiarian v Felix Contracting Corp., 51 NY2d 308, 315 [1980].) Another factor the court may consider is whether the "intervention brings about harm different in kind from that which would otherwise have resulted from the actor's negligence . . . or is not a normal result of such a situation." (Restatement (Second) of Torts § 442 [a] & [c] [1965].)

The electrician's act of flipping the switch in respondent's fuse box to isolate and repair the short was not an extraordinary or unforeseeable act to fixing a short that respondent asked to be fixed. Not only was the electrician's act not independent of or far removed from respondent's acts, but it flowed directly from respondent's overloading the outlet and shorting out the fuse. The electrician's act would not have caused harm different from what would have resulted from respondent's negligence. A fire would have occurred even if the electrician had not worked on the electricity when anyone, including respondent, had flipped a switch in the fuse box to repair the short. The electrician's conduct did not sever the chain of events that respondent put into motion. Therefore, the court finds that respondent's acts were the proximate cause of the July 2002 fire.

Respondent was also grossly negligent in leaving a lit stove unattended while he took a shower, which caused the October 2004 fire. Respondent knew that he ignited the pilot light and that a pile of mail was on the stove, but he left the kitchen to take a shower with a conscious indifference to that possibility of fire.

Petitioner alleges that respondent's post-termination conduct is another example of respondent's gross negligence that remains a hazard to the health and safety of the building's other occupants. Petitioner alleges that respondent continues to be grossly negligent in maintaining his apartment, specifically by continuing to cover his stove with numerous flammable items, as described above. (Petitioner's 5 C-E.) According to Domen Holding Company v Aranovich, a court may consider post-termination conduct in reviewing a nuisance claim. (See 1 NY3d 117, 124 [2003].) Post-termination conduct is relevant in that it may, among other things, such as proving intent or lack of accident, provide "further proof of a landlord's contention that a tenant engaged in a pattern of objectionable conduct." (Goodhue Residential, 2003 NY Slip Op 51559 [U], *5, 2003 WL 23148836.)

The court finds that the trial evidence proves respondent's continuing gross negligence in keeping numerous flammable items on his stove and overloading his kitchen outlet. Petitioner's evidence includes the March 2005 photographs, which show that respondent covered his stove with mail, plastic containers, plastic bags, a book, and other items, so much so that the stove is only partly visible. (Petitioner's 5 C-E.) The condition in March 2005—papers on the stove—also caused the October 2004 fire. Respondent should know that the conditions he [*6]created will possibly cause another fire, but respondent has not changed his practices. Even if he had to empty out his cabinets if petitioner had not repaired his kitchen quickly enough, he could have simply placed items into boxes or in another room instead of leaving them on his stove and piled high in his kitchen. And respondent has wires dangling over his stove as recently as March 2005.

Respondent's not changing his practices is also shown by an October 2004 photograph, which shows that respondent overload his outlets just like he did in July 2002. (Petitioner's 4 A.)

Final judgement for petitioner. Warrant to issue forthwith. Because respondent has lived in the subject premises for 47 years, execution of the warrant is stayed through December 31, 2005, on condition that respondent continues to pay use and occupancy. If, however, respondent maintains a Collyer condition as he did in March 2005, petitioner may move to accelerate the execution of the warrant. Petitioner may inspect respondent's apartment on 48 hours' notice, once a week, and take photographs until December 31, 2005, to determine whether respondent maintains conditions that might lead to another fire.

This opinion is the court's decision and order.

Dated: June 24, 2005.

J.H.C