Beacon 109 245-251 LLC v Van Dyke
Annotate this CaseDecided on October 15, 2014
Civil Court of the City of New York, New York County
Beacon 109 245-251 LLC, Petitioner-Landlord,
against
Marjorie Van Dyke, 247 WEST 109TH Street, Apt 14 NEW YORK, NY 10025, Respondent-Tenant.
L & T 58680/2010
HORING WELIKSON & ROSEN, PC
Attorneys for Petitioner
By: LEONARD R. KAPLAIN, ESQ
11 Hillside Avenue
Williston Park, New York 11596
SRO LAW PROJECT
Attorneys for Respondent
By: CLINT J. GUTHRIE, ESQ.
51 West 109th Street
New York, New York 10025
Sabrina B. Kraus, J.
BACKGROUND
The underlying summary holdover proceeding was commenced by BEACON 109 245-251 LLC(Petitioner) against MARJORIE VAN DYKE(Respondent) the rent-stabilized tenant of record of the Subject Premises based on the allegation that Respondent had not maintained the Subject Premises as her primary residence. Respondent is married to Joseph Haske (Haske) and the issue at trial is whether she primarily resided with Haske or at the Subject Premises for the two year period.
PROCEDURAL HISTORY
Petitioner issued a notice of non-renewal dated November 30, 2009, which asserted that the Respondent had not been seen at the Subject Premises for at least six months, had vacated and was residing at 121 Wooster Street, Apartment 5F. The proceeding was originally returnable in court on March 24, 2010.
In April 2010, Respondent appeared through counsel, and on July 25, 2011, Respondent filed an answer. On October 4, 2011, the proceeding was marked off calendar for discovery. On July 10, 2012, Respondent appeared for a deposition.
In April 2013, this Court denied Respondent's motion for summary judgment and scheduled trial for May 2, 2013.
On February 10, 2014 the proceeding was assigned to Part L for trial. Some documents were marked into evidence and the proceeding was adjourned at 1 pm based on an application by Respondent's counsel. The trial continued on February 11, July 7, and September 10, 2014.
Initially on July 7th, Respondent rested after her testimony. Petitioner then moved the court for a negative inference based on Respondent's failure to call Haske as a witness. In response to the request for a negative inference, Respondent made an application to reopen its case and for a continuance so Respondent could call Haske as a witness. This application was granted by the court, and the proceeding was adjourned to September 10, 2014, for continued trial.
On September 10, 2014, Respondent then made another application to recall Respondent as a witness to correct Respondent's testimony based on information counsel discovered while preparing Haske for his testimony. The application was granted by the court, and Respondent retook the witness stand and admitted that she had perjured herself in her prior testimony, when she testified that she was not married and that in fact she and Haske had married in February 2013.
Haske also testified on September 10. Haske testified on direct examination that she sleeps at the Subject Premises with Respondent between 4 to 5 nights per week. After Haske testified Respondent rested.
On September 10, 2014, Petitioner made an oral application to offer the video tape evidence on its rebuttal case that had been excluded on Petitioner's prima facie case. The court afforded both parties an opportunity to submit briefs on the application. Briefs were submitted on October 2, 2014, and the court reserved decision.
DISCUSSION Petitioner initially sought to admit the video evidence on its prima facie case on the
first day of trial on February 11, 2014. The video evidence covers a period from January 2012 through August 2012. As noted above, the Notice of Nonrenewal was issued November 2009, making 2012 well beyond the relevant period. Based on the foregoing, the evidence was not admitted, as the court found it could not constitute evidence supporting Petitioner's prima facie case.
On its rebuttal case, Petitioner now renews its application to admit the evidence.
On July 7, 2014, at trial, on direct examination Respondent testified that she has never lived anywhere else since moving into the Subject Premises. Respondent testified that since 2008 she is at the Subject Premises almost everyday. Respondent testified that she stays at Haske's apartment a few nights a week, and that on the other nights Haske stays with her at the Subject Premises.
Petitioner asserts that the video evidence will show Respondent is not a credible witness and that she slept in the Subject Premises only 44 days out of the 216 days recorded. Petitioner argues that the video evidence has now become relevant as to Respondent's credibility.
The court finds that Petitioner should be permitted to present this evidence. Petitioner's use of the evidence to contradict Respondent's testimony on direct examination is appropriate. [*2]Respondent cites Yeomans v Warren 87 AD2d 713 in opposition to Petitioner's request. The court finds the holding in Yeoman's supports the granting of Petitioner's request. Yeomans held that a party who has the burden of proof must present all evidence in support of its case before it closes, and can not hold the evidence for rebuttal. This court already excluded the videotape evidence after the relevant period as not relevant to Petitioner's prima facie case.
Petitioner now seeks to use the tapes on rebuttal to contradict the testimony of Respondent on direct examination that her use of the Subject Premises remained the same before and after the relevant period. As noted in Yeoman's rebuttal evidence is properly accepted when it seeks to deny some affirmative fact which the answering party has endeavored to prove [see also United States v Atherton 936 F.2d 728 (proper to impeach defendant's credibility on rebuttal through evidence that was barred from the case in chief)]. Here, Respondent's defense is that while she regularly sleeps at her husband's apartment, she spends the majority of her time at the Subject Premises and has continued to do so to date. Thus the tapes are admissible to the extent that Petitioner purports they will contradict Respondent's testimony. Testimony her counsel elicited on direct examination of Respondent both on July 7 and after being recalled on September 10.
Generally, whether video tape evidence is admissible is within the sound discretion of the trial court and depends on the facts and circumstances of each case. (Capara v Chryusler Corporation 71 AD2d 515). Petitioner has indicated it is prepared to lay a proper foundation for the videos through the testimony of an expert that the videotape truly and accurately depicts what was before the camera, and chain of custody testimony (People v Patterson 93 NYS2d 80).
However, on September 10, 2014, the parties entered a so-ordered stipulation regarding the submission of papers of the issue of the admissibility of the video tapes and wherein it was agreed that Petitioner would provide " a full true readable digital copy of the videotapes and reports to Respondent's counsel on or before 9/15/14." This agreement was arrived at with the court's input, and in consideration of CPLR § 3101(i) which provides for full disclosure of video tapes, and to insure that Respondent had a sufficient opportunity to evaluate the authenticity and reliability of the tapes prior to Petitioner's seeking to admit them into evidence.
Respondent asserts that Petitioner has not complied with this part of the stipulation. Petitioner must comply with this provision. Petitioner's proposed alternatives of requiring Respondent's counsel to allow access to its network including confidential files, or requiring counsel to go to New Jersey and view the files while being charged $150 per hour are both unacceptable. Petitioner must make a true and accurate copy of whatever it intends to offer into evidence and provide same to Respondent on or before October 31, 2014.
Failure to comply will result in the court excluding the tapes from evidence.
The proceeding is restored to the calendar for a status conference on November 6, 2014 at 9:30 am.
This constitutes the decision and order of this court.
Dated: October 15, 2014
New York, New York_____________________
Hon. Sabrina Kraus
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
