T & S Realty Corp. v On Lee

[*1] T & S Realty Corp. v On Lee 2015 NY Slip Op 51588(U) Decided on November 4, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 4, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Ling-Cohan, JJ.
570866/15

T & S Realty Corp., Petitioner-Landlord-Appellant,

against

On Lee, Respondent-Tenant, - and - Mei Fong Leung, Respondent-Undertenant-Respondent, - and - "John Doe" and "Jane Doe" Respondents-Undertenants.

Petitioner appeals from a final judgment of the Civil Court of the City of New York, New York County (Arlene H. Hahn, J.), entered on or about March 14, 2014, after a nonjury trial, which dismissed the petition in a holdover summary proceeding.

Per Curiam.

Final Judgment (Arlene H. Hahn, J.), entered on or about March 14, 2014, affirmed, with $25 costs.

The trial court's fact-based determination that respondent Mei Fong Leung, the wife of the deceased rent controlled tenant, met her affirmative obligation to establish succession rights to the subject rent controlled tenancy (see New York City Rent and Eviction Regulations [9 NYCRR] § 2204.6[d]), represents a fair interpretation of the evidence (see 318 E. 93 v Ward, 276 AD2d 277 [2000]). The record shows that respondent moved into the subject apartment in 1966, upon her marriage to the tenant Yee Parke Leung; that she occupied the premises with her husband as a primary residence from 1966 until her husband's death in 2001 (see Rent and Eviction Regulations [9 NYCRR] § 2200.2[o]); and thereafter continued to occupy the premises as her primary residence from 2001 to the present. The trial court was warranted in crediting the testimonial and documentary evidence presented by respondent, particularly in the absence of any rebuttal testimony (see 300 East 34th St. Co. v Habeeb, 248 AD2d 50 [1997]; Morton St. Assoc., LLC v Volpe, 19 Misc 3d 126[A], 2008 NY Slip Op 50483[U] [App Term, 1st Dept 2008]). It [*2]was also within the province of the trial court, as factfinder, to accept the unrebutted testimony that the now-deceased tenant (Leung) also used the name "Lee On," which appears on money orders that petitioner accepted as rent payments for over ten years. In these circumstances, the minimal documentary evidence presented by petitioner does not preponderate over the plausible and fully credited testimonial evidence (see 23 Jones St. Assoc. v Keebler-Beretta, 284 AD2d 109 [2001]).

We have considered petitioner's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

Decision Date: November 04, 2015