This is a dispute over an abatement claim after a fire. Respondent seeks a six-month abatement, measured from the date of the fire to the date she was restored to possession. Petitioner claims respondent is not entitled to any abatement because she was (allegedly) responsible for the fire and, further, disputes the length of time respondent was displaced.

By petition and notice of petition dated December 19, 2018, petitioner commenced this nonpayment proceeding seeking rent for the premises, 5445 Kings Highway, Apt B2, Brooklyn, New York 11203 ("premises"), for the balance of rent owed in September 2018, and for monthly rent for October, November, and December 2018. Respondent interposed her answer, pro se, and received a court date of January 30, 2019. A judgment and warrant issued in February 2019. Multiple orders to show cause/motions, stipulations and orders ensued. (NYSCEF Docs. No.19-29) Significantly, in one of the stipulations, dated April 8, 2019, respondent agreed to pay rent as it became due; all payment were to be applied to current rent first. (NYSCEF Doc. 20)^[FN1]

On March 4, 2022, petitioner moved for leave to re-execute the warrant. At a court conference the parties did not agree on the rent amount owed or abatement due to a fire that [*2]occurred on July 3, 2021. The matter was set down for a hearing to determine what if any abatement respondent should receive from the date of the fire, July 3, 2021, until respondent was restored to possession. (NYSCEF Doc. 30)

The hearing took place from October 24, 2022, through November 1, 2023. Petitioner submitted a post-trial memorandum (NYSCEF Doc 48) with exhibits (NYSCEF Doc 49-64).

1. Respondent Laraya Wilson

Respondent Laraya Wilson testified on October 24, 2022, that she was dispossessed on account of a fire from July 2021 to December 2021. She did not receive the keys back to her apartment until December 14, 2021. She testified she stayed with friends, relatives and rented through Airbnb while displaced.

For six months, respondent and her uncle cleaned out the apartment of debris and attempted to salvage her property. She also received help from Sergio, the superintendent, and two other workers. Arrangements were made to obtain access through Sergio.

The following exhibits were introduced by respondent:

Exhibit R1, the July 3, 2021, FDNY fire report;

Exhibits R2 A-R, photographs of apartment; and

Exhibit s R2-S, T, text messages.

2. Evangeline Wilson Vann

Evangeline Wilson, a retired corrections officer, recalled that on July 3, 2021, the day of the fire, she observed that the apartment had no windows, no sheetrock, walls, or ceilings. Though the fire originated in kitchen, half of the living room and foyer were affected. Soot was everywhere, and all personal effects such as toiletries, cosmetics were damaged and not useable. Many items had to be thrown out. She went to the apartment on 5 occasions between September and October 2021 to pack up clothing and determine what personal property was salvageable. The witness testified that respondent slept on the couch of her 3-room, 1- bedroom apartment for a period of time when displaced

3. Lajenna Bartley

On March 3, 2023, Lajenna Bartley testified that, after receiving a call from respondent's distraught mother about the fire, she went to the apartment on July 3, 2021. She observed busted-out windows, water damage, soot-filed living room, and a collapsed foyer ceiling.

The witness testified that no one from building management helped them clear the debris after the fire. The witness returned on several occasions in a N95 mask to help wash clothes and bag items. She brought garbage bags and worked to clear the bathroom, bedroom living and dining areas. Ms. Bartley testified there was no electricity, and, since the windows were boarded up, it was difficult to see inside as very little light shone though the boards. The clean up process was time consuming and could only be done with a flashlight. Debris was eventually hauled into large dumpsters.

The witness testified that respondent stayed with her and her son during July and August 2021; she slept on the couch of their 2-bedroom apartment.

4. Dudley Wilson

On April 19, 2023, respondent's uncle, Dudley Wilson, testified. On July 3, 2021, the day of the fire, Mr. Wilson observed that the kitchen ceiling was torn out and appliances were [*3]scorched. He stood in a foot of debris. In the foyer, he observed broken windows, broken glass, the air conditioner was pulled out, and the debris from ceiling covered the floor. The interior was wet from being hosed down by FDNY. Household items were full of soot and smoke. There was extensive damage particularly to respondent's personal effects. Mr. Wilson wanted to salvage as much personal property as he could and started to remove the debris the day after the fire, on July 4. As to access, he obtained an emergency key for the first 2 weeks after the fire. Thereafter, arrangements were made with Sergio, the super, to gain access. Mr. Wilson went nearly every day in for the entire months of July and August to clean up. In September, he went 2 to 3 times a week, and on October 1 to 2 times a week.

It took approximately 3 to 6 weeks, until the end of August, to remove the debris. He received no help from the super or management to remove the debris until the second or third week of August, when Sergio helped him lift large items like living room couch and a 6-to-7-foot console through a window into a dumpster—items so large or heavy that they were impossible for one person to lift. Progress was slowed by the fact that one could not see inside the apartment with plywood on the windows. Management boarded up the windows with plywood within the first 1 to 2 weeks of the fire. It was difficult to see, requiring constant visits.

Once debris was removed, the floor had to be redone, and walls and windows replaced.

1. Fanton Bauta

On May 31, 2023, Faton Bauta, petitioner's managing agent, testified. On the day of the fire, he walked through the foyer to the kitchen. He observed that most of the damage was in the kitchen; he saw charring elsewhere. The witness never did a walkthrough with the tenant and had limited interaction with her. He testified he contacted respondent shortly after the fire to explain protocol and a second time for instructions as to the key when she was ready to resume occupancy. The witness oversaw all assigned roles of workers Sergio and Jeff, who were in charge of clean-up; Tony did work after the cleanup. The witness introduced:

Exhibit PA, ACH listing charges for work, (not a paid invoice);

Exhibit PB, a rent ledger;

Exhibit PC, the August 3, 2021, bill for new kitchen cabinets marked paid; and

Exhibit PE, a July 9, 2021, credit card charge, from PC Richard.

The witness testified he observed removal of debris and repair of the apartment every day and that he was present once a week for 10-15 minutes. The witness personally observed that the work was finished on August 6 or August 7, 2021. He inspected the apartment himself and observed the floor was completed.

As for utilities, the agent explained that gas and electricity were turned off during work, and that it is necessary for the tenant to call the utility to reinstate services. This requires the tenant to contact the utilities and the petitioner to provide an approval code.

Petitioner did not file an insurance claim, as it was quicker not to, in his view, have to wait months for an expert to proceed.

2. Sergio Garcia

On September 21, 2023, Sergio Garcia testified. Since 2021 he has been the superintendent of the subject premises. After the fire, FDNY broke the cylinder and immediately turned off the gas. The Fire Marshal gave him clearance 2-3 days after fire that it was okay to work inside the apartment.

Windows were immediately boarded up against rain and squatters. When he was allowed into the apartment on July 10, 2021, Mr. Garcia moved rubbish including sheet rock and appliances. He provided access 3-4 times for "personal stuff". He performed some electrical work although he is not a licensed electrician, claiming the electrical work did not require [*4]licensure. Mr. Garcia testified that respondent was given a key to her apartment in August 2021.

3. Tony Osmen

On November 1, 2023, Tony Osmen testified. He is employed by Empress Property/Clarendon Gardens and oversees the super of building. He is familiar with the apartment as he also lives in the building. The witness introduced photos P D1-21 showing progress of the work in July and August 2021. The witness says the work was completed by August 8-10, 2021.

The witness testified he was at the apartment from 9am to 5pm, 5 to 6 days a week, beginning July 10 and ending August 10, 2021. He described delays in obtaining appliances during the pandemic. He explained the tenant had to call National Grid to restore utilities, noting the electric was on and that Sergio installed the stove in September 2021.

New York State implies into every residential lease a warranty that the demised premises are habitable, RPL §235-b (1). The warranty protects against those conditions that materially affect the health and safety of the tenants or those deficiencies that in the eyes of a reasonable person deprive a tenant of those essential functions which a residence is expected to provide. Port Chester Housing Auth. v. Mobley, 6 Misc 3d 32, 34 (App. Term 2nd Dept. 2004). A warranty of habitability defense implicates a "clear public policy interest." Windy Acres Farm, Inc. v. Penepent, 40 Misc 3d 63, 64-65 (App. Term 2nd Dept. 2013).

Clearly, respondent met the prima facie elements of the breach of the warranty of habitability. Respondent testified credibly as to the uninhabitable conditions following the fire on July 3, 2021. Exhibits (R 1, R-2), the FDNY Fire Report and photographs of the apartment from July 3 through August 24, 2021, demonstrate that the conditions were uninhabitable. Witnesses for both parties corroborated the respondent's testimony. Petitioner clearly had immediate notice of the conditions. Access was provided. Respondent's use and enjoyment of the premises was affected by the fire, continuing electrical issues and subsequent clean up.

In opposition to respondent's case, petitioner argues that respondent should be denied an abatement due to her own negligence. Citing the elements of res ipsa loquitor, (that the fire does not generally happen without negligence, that it was caused by an instrumentality solely in respondent's control and that petitioner did not contribute to the cause,) petitioner argues respondent is not entitled to an abatement. Petitioner cites DeMartini v Eimicke, 158 AD2d 522, (2nd Dept 1990) for this proposition. In that case, DHCR found it was incumbent upon the agency to determine whether the tenants were negligent in the malfunction of their dishwasher.

This hearing was held to determine whether petitioner breached the warranty of habitability. RPL §235-b (1) provides that when a condition impacting habitability has been caused by the misconduct of the tenant, there is no breach of the warranty. However, at this hearing, petitioner did not prove misconduct of the tenant. In Bender v. Green 24 Misc 3d 174 (NY Cty, Civ Ct. 2009), the court declined to find such "misconduct" even when evidence suggested that a bedbug infestation was caused by actions of the respondents. The court found "there was nothing in the record to suggest that any deliberate or intentional act was done by respondents which led to the presence of bedbugs. . . Or even that respondents were negligent in any manner." That court noted, RPL 235-b . . . "essentially makes petitioner's strictly liable for conditions in the premises, and responsible for taking reasonable action to eliminate the condition."

Even if this court were to consider it, the record does not support a finding of negligence. Courts have generally relied on expert testimony in fire cases to determine the cause of a fire. See Ponomareva v 1439 Realty, LLC, 2020 NY Slip Op. 05959 (App. Div. 2d Dept. 2020) (where the landlord provided testimony of 3 fire marshals as well as the fire report to support its prima facie [*5]case that a fire was caused by an electrical space heater rather than landlord negligence.) 174 LLC v Pearl Roberts, 10 Misc 3d 1061 (A) (Bx Cty Civ Ct, 2005), (court relied on the expert testimony of the Fire Marshal to find a tenant negligent for leaving a curling iron unattended resulting in a fire.) No testimony was presented from any expert or licensed professional to prove that the fire was caused by respondent's misconduct. This court finds the FDNY report, without more, does not constitute proof of misconduct or negligence.

The considered and finds petitioner's other arguments in opposition unavailing.

Based on the evidence, the court determines that the respondent is entitled to a 100% abatement for the months of July 2021 through September 2021. While the weight of the testimony and exhibits suggest that the subject premises was restored at the end of August 2021, respondent testified about remaining electrical problems sufficient to award an additional month's abatement.

The measure of damages for breach of the warranty of habitability is the difference between the rent reserved under the lease and the value of the premises during the period of the breach. Park West Management Corp. v. Mitchell, 47 NY2d 316, 329, cert. denied, 444 U.S. 992 (1979), Elkman v. Southgate Owners Corp., 233 AD2d 104, 105 (1st Dept. 1996).

The court awards a 100% rent abatement for the period July 2021 to September 2021 in the amount of $4,284.69, as follows:

The monthly rent for this period was $1,428.23 per month. The rent owed to date is $59,708.71. Subtracting the abatement amount of $4,284.69, the amount owed is $55,424.02. Execution of the warrant is stayed through July 26, 2024, for payment of $55,424.02. Petitioner is permitted to re-execute on the existing warrant.

Accordingly, it is

ORDERED, that, on respondent's first counterclaim for the breach of the warranty of habitability, judgment for respondent in the amount of $4,284.69, without prejudice to any rent arrears that remain, and it is further

ORDERED, execution of the warrant of eviction is stayed through and including July 26, 2024, for payment of $55,424.02 as all rent due through and including February 29, 2024.

ORDERED Upon default, warrant shall execute after service of a marshal's notice by first-class mail.

This constitutes the decision and order of the court.