New York City Hous. Auth. (Baruch Houses) v Martinez

[*1] New York City Hous. Auth. (Baruch Houses) v Martinez 2015 NY Slip Op 51484(U) Decided on October 7, 2015 Appellate Term, First Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 7, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., Ling-Cohan, JJ.
570743/15

New York City Housing Authority (Baruch Houses), Petitioner-Landlord-Respondent,

against

Esteban Martinez, Respondent-Tenant-Appellant.

Tenant appeals from a final judgment of the Civil Court of the City of New York, New York County (Peter M. Wendt, J.), entered on or about February 6, 2015, after a nonjury trial, which awarded possession to landlord in a holdover summary proceeding.

Per Curiam.

Final judgment (Peter M. Wendt, J.), entered on or about February 6, 2015, reversed, without costs, and a new trial ordered.

This summary holdover proceeding is based upon allegations that tenant's public housing apartment was being used for illegal drug activity. Following a nonjury trial, the court awarded a possessory judgment to landlord, finding that "the subject premises was used for the illegal business of packaging cocaine for distribution and sale," and that tenant "knew or should have known of the illegal drug related activity occurring in his apartment." While the court's written decision correctly noted that 16 plastic bags containing cocaine and $1,080 in cash were recovered from the bedroom of tenant's roommate, one Soltren, and that paraphernalia, such as baggies and straws, were recovered from tenant's bedroom, the decision also contains factual findings that were not supported by the admissible evidence. Among these unsupported findings are that police recovered "a large quantity of cocaine in a brown paper bag in Mr. Soltren's bedroom," and that the arresting officer testified that "the amount and packaging method of the cocaine showed packaging for sale."

In reviewing a trial court's findings of fact following a nonjury trial, this Court's authority is as broad as that of the trial court and includes the power to render the judgment it finds warranted by the facts (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]). However, not every case lends itself to this procedure (see Pordy v Scot Serv. Co., 15 AD2d 911 [1962]). In this case, the court's conclusions that the premises were used for "packaging cocaine" and that tenant "knew or should have known" of the illegal activity were expressly based, in part, upon a finding of a "large amount of illegal narcotics" in the apartment. However, when we disregard the court's misstatements of the evidence, the issues presented are much closer, and "much would depend on the credibility of the witnesses" (Power [*2]v Falk, 15 AD2d 216 [1962]). In the particular circumstances, the interests of justice would best be served by a new trial before a different judge. We need not and do not reach any other issue.

This constitutes the decision and order of the Court.

I concur I concur I concur

Decision Date: October 07, 2015