Mengoni v Lorelli

[*1] Mengoni v Lorelli 2009 NY Slip Op 50791(U) [23 Misc 3d 134(A)] Decided on April 27, 2009 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 27, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, J.
570632/07

Fred Mengoni, Petitioner-Landlord-Appellant,

against

M.P. Lorelli, Respondent-Tenant-Respondent.

Landlord appeals from 1) an order of the Civil Court of the City of New York, New York County (David B. Cohen, J.), dated June 19, 2007, which, in a holdover summary proceeding, granted tenant's motion to dismiss the petition on the ground that landlord failed to make out a prima facie case at trial, and 2) an order (same court and Judge), dated August 17, 2007, which denied landlord's motion for reargument and granted tenant's application for attorney's fees.

Per Curiam.

Order (David B. Cohen, J.), dated June 19, 2007, reversed, with $10 costs, tenant's motion to dismiss denied, petition reinstated and matter remanded for a new trial. Appeal from order (David B. Cohen, J.), dated August 17, 2007, dismissed, without costs, as academic.

Landlord commenced this holdover summary proceeding based upon tenant's alleged breach of the "no alterations" clause of the governing rent stabilized lease agreement. The trial court excluded landlord's proffered testimony concerning the critical issue of consent, sustaining tenant's objections that this line of inquiry was leading. Having refused to admit such evidence, the trial court dismissed the petition at the close of landlord's case on the ground that landlord failed to present a prima facie case. This was error. A review of the record reveals that the questions asked by landlord's counsel, calling for a "yes" or "no" answer, were generally not leading (see Prince, Richardson on Evidence § 6-223 [Farrell 11th ed]). To the extent that some of the questions may have been leading, in the context of this nonjury trial and in the absence of any showing of prejudice to tenant, the questions should have been permitted since they largely related to introductory matters and "tend[ed] to carry the witness quickly to matters material to the issue" (Prince, Richardson on Evidence § 6-227 [Farrell 11th ed]). Inasmuch as landlord was precluded from establishing one of the
elements of his prima facie case, a new trial is required.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 27, 2009