Hudson House LLC v Pointdujour

[*1] Hudson House LLC v Pointdujour 2004 NY Slip Op 51547(U) Decided on December 8, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 8, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., PATTERSON and RIOS, JJ.
2004-196 Q C

HUDSON HOUSE LLC, Appellant,

against

MAIRE POINTDUJOUR, Respondent.

Appeal by plaintiff from a small claims judgment of the Civil Court, Queens County (K. Kerrigan, J.), entered September 17, 2003, in favor of defendant dismissing the action.

Judgment unanimously reversed without costs and a new trial ordered in accordance with the decision herein.

Plaintiff-landlord sought recovery of alleged unpaid rent for a portion of 1996 and 1997, for the last two months of a lease expiring January 31, 1999 and for the first two months of the lease as allegedly renewed. In our view, the court properly denied the rent claims for 1996 and 1997 which plaintiff sought to prove solely by an unverified document prepared under unspecified circumstances by plaintiff's former employee and without any foundation offered for its admission pursuant to an exception to the hearsay rule. Not even a small claims judgment may stand on hearsay alone (Zelnik v Bidermann Indus. U.S.A., 242 AD2d 227, 228 [1997]; Levins v Bucholtz, 2 AD2d 351, 351-352 [1956]; Fisher v Projects Unlimited, 3 Misc 3d 128[A], 2004 NY Slip Op 50365[U] [App Term, 9th & 10th Jud Dists]; see e.g. Haff v F&J Transmissions, Inc., 4 Misc 3d 142[A], 2004 NY Slip Op 51070[U] [App Term, 9th & 10th Jud Dists]). However, given tenant's concession that she remained in possession at least until December 31, 1998 pursuant to a lease expiring January 31, 1999, mere doubt as to the basis of plaintiff's knowledge of precisely when defendant vacated was not a ground to decline to reach the question of whether defendant owes rent for a portion of the term of the lease expiring in January 1999, whether the lease was renewed, and if renewed, whether rent was due for the months prior to plaintiff's reletting. Accordingly, the matter is remanded for a new trial on that portion of the claim. [*2]

_
Decision Date: December 08, 2004