David Chait, LLC v Martin

[*1] David Chait, LLC v Martin 2011 NY Slip Op 50603(U) Decided on April 5, 2011 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 5, 2011
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., PESCE and RIOS, JJ
2009-2188 Q C.

David Chait, LLC, Respondent,

against

Paulette Martin, Appellant, -and- "JOHN" MARTIN, "JOHN DOE and JANE DOE," Undertenants.

Appeals from a final judgment of the Civil Court of the City of New York, Queens County (Maria Ressos, J.), entered March 6, 2009, and an order of the same court dated April 20, 2009. The final judgment, after a nonjury trial, awarded landlord possession and the sum of $11,440 in a holdover summary proceeding. The order denied tenant's motion to vacate the final judgment.

 

ORDERED that the final judgment and order are affirmed, without costs.

In this residential holdover proceeding, the Civil Court, after a nonjury trial, awarded landlord possession and the principal sum of $11,440. Tenant Paulette Martin subsequently moved to vacate the final judgment, which motion the Civil Court denied. We affirm both the final judgment and the order.

The decision of a fact-finding court should not be disturbed upon appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]). Furthermore, the determination of the trier of fact as to issues of credibility is given substantial deference, as the trial court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess the credibility of the witnesses (see Vizzari v [*2]State of New York, 184 AD2d 564 [1992]; Kincade v Kincade, 178 AD2d 510, 511 [1991]).

In this proceeding, there was no dispute that the tenancy was month to month, which tenancy could be terminated upon 30 days' notice (Real Property Law § 232-a), or that the required notice was properly served. The evidence also supports the trial court's conclusion that the proceeding was not retaliatory.

Contrary to tenant's argument on appeal, landlord was not barred from maintaining this holdover proceeding based on the fact that the building may once have been an unregistered multiple dwelling (see Czerwinski v Hayes, 8 Misc 3d 89 [App Term, 2d & 11th Jud Dists 2005]; see also Aspilaire v Louis, 15 Misc 3d 130[A], 2007 NY Slip Op 50658[U] [App Term, 2d & 11th Jud Dists 2007]; Bouwerie Lane Corp. v Black, 12 Misc 3d 132[A], 2006 NY Slip Op 51167[U] [App Term, 1st Dept 2006]; Chopra v Parkin, 7 Misc 3d 133[A], 2005 NY Slip Op 50645[U] [App Term, 2d & 11th Jud Dists 2005]). Moreover, it was undisputed that the building was no longer an unregistered multiple dwelling for the time period for which rent was sought, and so landlord was not precluded from seeking that rent (see Misir v Gilbert, 19 Misc 3d 136[A], 2008 NY Slip Op 50742[U] [App Term, 2d & 11th Jud Dists 2008]; Candela v Fried, 3 Misc 3d 136[A], 2004 NY Slip Op 50508[U] [App Term, 2d & 11th Jud Dists 2004]). Tenant did not dispute that she had not paid the rent for the months for which the arrears were awarded, and the Civil Court's conclusion that tenant was not due an abatement is supported by the record. Finally, tenant's motion to vacate the final judgment based on evidence which tenant allegedly had, but which was not presented by her counsel at trial, was without merit.

Accordingly, the final judgment and order are affirmed.

Golia, J.P., Pesce and Rios, JJ., concur.
Decision Date: April 05, 2011