Opinion
March 15, 1971
In a summary proceeding by a landlord to recover possession of an apartment on the ground the tenants are hold-overs after service of notice terminating the tenancy for violation of terms of the tenancy, etc., the tenants appeal (by permission) from an order of the Appellate Term, Second and Eleventh Judicial Districts, dated September 30, 1970, which affirmed a judgment of the Civil Court of the City of New York, Kings County, dated February 2, 1970 and made after a nonjury trial, awarding possession of the premises to the landlord. Order and judgment reversed, on the law and the facts, without costs, and new trial granted. In our view the proof presented at the trial did not clearly establish whether the overflow of water from the tenants' apartment was primarily caused by the tenants' conduct as opposed to a defective plumbing condition and, further, whether the garbage accumulation was a recurring rather than an isolated problem. Rabin, P.J., Hopkins, Munder, Martuscello and Latham, JJ., concur.