Callender v Titus

[*1] Callender v Titus 2004 NY Slip Op 50608(U) Decided on June 7, 2004 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 7, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., ARONIN and PATTERSON, JJ.
NO. 2003-371 K C

GASPAR CALLENDER, Respondent,

against

FULTON TITUS, Appellant.

Appeal by defendant from a judgment of the Civil Court, Kings County

(P. Sweeney, J.), entered August 27, 2002, and from an order of the same court, entered January 10, 2003, which amended the judgment so as to provide that the counterclaim was dismissed with prejudice.

Appeal from judgment unanimously dismissed.

Order unanimously affirmed without costs.

In this plenary action for rent due and owing, the record supports the credibility findings of the court, as trier of fact, that defendant turned over the keys to the premises on May 26, 2001 and that he denied landlord access to the apartment to make repairs
prior to that time. Therefore, the court's credibility determinations will not be disturbed on this appeal (see Nicastro v Park, 113 AD2d 129 [1985]).

The court's damages determination in favor of plaintiff was also proper, as plaintiff, the landlord, had no duty to mitigate his damages by reletting the premises (see generally Holy Props. v Cole Prods., 87 NY2d 130 [1995]; Commuter Housing Company v Saunders, NYLJ, Dec. 11, 2000 [App Term, 9th & 10th Jud Dists]; cf. McMorrow v Dorian, NYLJ, Apr. 23, 1998 [App Term, 2d & 11th Jud Dists]).The testimony received upon the issue of reasonable attorney's fees to plaintiff as the prevailing party, as provided in the lease at paragraph 27 thereof, established that an appropriate and relatively small amount of work was done on the matter, [*2]which was not novel, and that counsel was qualified to receive the rate requested (see 490 Owners Corp. v Israel, 189 Misc 2d 34 [App Term, 2d & 11th Jud Dists 2001]).

Finally, upon the post-judgment motion, the court properly dismissed defendant's personal injury counterclaim, upon which no testimony or other evidence was received at trial. Although defendant proceeded pro se, he did so at his own peril and received, in the Civil Court context, "no greater right than any other litigant and such appearance may not be used to deprive [other parties] of the same rights enjoyed [in other cases]" (Banushi v Lambrakos, 305 AD2d 524 [2003]; see also Roundtree v Singh, 143 AD2d 995 [1988]). While defendant may have erroneously believed that it was up to the court to make an award upon his counterclaim regardless of whether he submitted evidence upon it or not, such a mistake does not entitle defendant to a second bite at the apple. Nor did his choice to proceed pro se mitigate his burden of presenting legally competent evidence upon the counterclaim (Duffen v State of New York, 245 AD2d 653 [1997]).

As the record supports the finding of the court below that defendant failed to give plaintiff access to repair the apartment prior to abandoning it, tenant was not entitled to an abatement based upon the condition of the apartment, and tenant's defense of the warranty of habitability was properly dismissed (see e.g. Continental Gardens Apt. Corp. v Fardi, NYLJ, Nov. 1, 2001 [App Term, 2d & 11th Jud Dists]).

We find defendant's other contentions raised on appeal to be without merit.
Decision Date: June 07, 2004