• Appellate Term, First Judicial Department
  • 12-496
  • May 17 2012 (Date Decided)
  • By: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ.

12-496. 219 WEST 20TH ST. CORP., pet-res, v. HAIDIE LEEMETS, res-ap — Appeal from order (Brenda S. Spears, J.), dated May 17, 2012, deemed an appeal from the ensuing final judgment (Jean T. Schneider, J.), entered May 17, 2012, and so considered (see CPLR 5520[c]), final judgment reversed, without costs, cross motions denied, and petition reinstated.

This nuisance holdover proceeding is not ripe for summary disposition. The conflicting evidence submitted by the parties raises several triable issues of fact, most notably, whether tenant's conduct caused or contributed to the two apartment fires underlying landlord's eviction claim (compare 107-109 E. 88th St. LLC v. Nowillo, 13 Misc 3d 136[A], 2006 NY Slip Op 52176[U] [App Term, 1st Dept 2006] with Vukovic v. Wilson, 245 AD2d 1 [1997]; see generally Domen Holding Co. v. Aranovich, 1 NY3d 117 [2003]), and whether tenant impeded fire department efforts to gain access to the apartment on either occasion. The unsworn fire department reports relied upon by landlord, even if in admissible form (cf. Denicker v. Rohan, 236 AD2d 359 [1997]; Vozdik v. Frederick, 146 AD2d 898 [1989]), do not conclusively establish tenant's culpability, particularly given the cryptic and ambiguous notations contained in the report issued in connection with the February 2007 mattress fire that was described as yielding "no flame or smoke showing."

In reinstating the holdover petition, we do not pass upon tenant's application for discovery, which was not reached below. Our disposition is without prejudice to tenant's right, if so advised, to renew her application for such relief in Civil Court.