Nawal v Silva

[*1] Nawal v Silva 2008 NY Slip Op 51875(U) [20 Misc 3d 145(A)] Decided on September 3, 2008 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 3, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : WESTON PATTERSON, J.P., GOLIA and RIOS, JJ
2006-1709 Q C.

Bhanwarlal Nawal, Respondent,

against

Noeli Sergio Silva a/k/a Noeli Clemento Sergio and Amir Ramsey, Appellants, -and- "JOHN DOE" and "JANE DOE", Undertenants.

Consolidated appeals from (1) an order of the Civil Court of the City of New York, Queens County (Margaret Parisi McGowan, J.), dated November 20, 2003, (2) a decision of said court, dated February 24, 2004, deemed from the final judgment entered thereon on February 25, 2005 (see CPLR 5520 [c]), and (3) a final judgment of said court, entered March 8, 2004. The order dated November 20, 2003 denied a

motion by Amir Ramsey to stay enforcement of a final judgment entered November 12, 2002. The final judgment entered February 25, 2004, after a traverse hearing and nonjury trial with respect to Noeli Sergio Silva, awarded landlord possession in a holdover summary proceeding. The final judgment entered March 8, 2004, after a traverse hearing and nonjury trial with respect to Amir Ramsey, awarded landlord possession and the sum of $10,000 in the holdover summary proceeding.

Appeals by Amir Ramsey and Noeli Sergio Silva from order dated November 20, 2003 dismissed as academic.

Final judgments affirmed without costs.

Petitioner purchased tenant-appellant Noeli Sergio Silva's shares of stock in a residential cooperative corporation following a foreclosure proceeding, obtained the proprietary lease [*2]incident thereto, and commenced this holdover summary proceeding against Silva and her husband, appellant Amir Ramsey, both of whom remained in possession after an unsuccessful attempt to restrain the sale of the shares and to appeal from the order denying their motion for such injunctive relief (see Matter of Sergio v Elmhurst Gardens, Inc., 8 AD3d 489 [2004]). A default final judgment entered against Silva was subsequently vacated. After a traverse hearing, which resulted in the court's upholding service, Ramsey stipulated to the entry of a final judgment, but subsequently successfully moved to vacate the stipulation and the final judgment entered on November 12, 2002. Following a separate traverse hearing and trial with respect to Silva, and a separate trial with respect to Ramsey, the court awarded petitioner a final judgment of possession as against each appellant and the sum of $10,000, representing 10 months' use and occupancy. Appellants allege error with respect to the court's denial of the services of a translator at Ramsey's traverse hearing, the court's failure to review the merits of the foreclosure action, the court's refusal to permit Ramsey to testify at Silva's traverse hearing, and the sufficiency of proof at that hearing.

Contrary to petitioner's contention, appellant Ramsey's claim of error with respect to the court's failure to provide a translator at his traverse hearing was not rendered academic by the court's subsequent vacatur of the settlement stipulation. However, a review of the transcript supports the finding of the court below that Ramsey's competence in the English language sufficed to permit the proceedings to go forward without the assistance of a translator (e.g. Matter of Iskhakov [Commissioner of Labor], 11 AD3d 872, 873 [2004]). To the extent that Ramsey may not have understood legal concepts and terms, by proceeding pro se he assumed the risks attendant upon proceeding without the assistance of an attorney (Sloninski v Weston, 232 AD2d 913 [1996]; Roundtree v Singh, 143 AD2d 995 [1988]; Callender v Titus, 4 Misc 3d 126[A], 2004 NY Slip Op 50608[U] [App Term, 2d & 11th Jud Dists 2004]).

We also do not agree with appellants' contention that the court improvidently exercised its discretion in not allowing Ramsey to testify at Silva's traverse hearing. Ramsey's proposed testimony merely supported Silva's testimony as to the color of the interior side of the apartment door, and would have been introduced for the purpose of contradicting the process server's testimony, which was with respect to the color of the exterior side of the door. Thus, the proposed testimony, even if true, concerned an irrelevant matter and would not have justified rejection of the process server's testimony in general.

Appellants' only claim with regard to the sufficiency of the proof in the proceedings below was that the process server failed to produce, at Silva's traverse hearing, the certificates of follow-up mailing, previously introduced at Ramsey's traverse hearing and subsequently lost. However, in the circumstances presented, proof of such mailing could properly be found on the basis of the credible testimony of the process server that such mailing was made.

Accordingly, we affirm the final judgments in favor of petitioner. The appeals from the order dated November 20, 2003, denying Ramsey's motion seeking relief from the final judgment entered November 12, 2002 pursuant to the stipulation, are dismissed as academic, since said final judgment was subsequently vacated.

Weston Patterson, J.P., Golia and Rios, JJ., concur.