Southbridge Towers Inc. v Pion

[*1] Southbridge Towers Inc. v Pion 2009 NY Slip Op 52148(U) [25 Misc 3d 132(A)] Decided on October 22, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 22, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Heitler, Shulman, JJ
570757/08.

Southbridge Towers Inc., Petitioner-Landlord-Respondent,

against

Jodi Pion a/k/a Jodi Drucker, Robert Drucker and Arthur L. Pion, Respondents-Tenants-Appellants, -and- "John Doe" and "Jane Doe" Respondents.

Tenants appeal from a final judgment of the Civil Court of the City of New York, New York County (Brenda S. Spears, J.), entered September 18, 2008, after a nonjury trial, which awarded possession to landlord in a holdover summary proceeding.

Per Curiam.

Final judgment (Brenda S. Spears, J.), entered September 18, 2008, affirmed, with $25 costs.

The trial court's determination that tenant Jodi Pion did not principally reside in the subject Mitchell-Lama cooperative apartment (see 9 NYCRR § 1727-5.3[a][9]) is supported by a fair interpretation of the evidence, and we therefore decline to disturb it. The record, including the deposition testimony of tenant, her husband and uncle, supports the court's express finding that tenant and her husband utilized the apartment premises as a "pied-á-terre for occasional stays in New York City," and that they made the Old Westbury, Long Island home that tenant owns "the center of their lives," where "their young son goes to school ... participates in after-school and weekend activities ... the family worships ... and they celebrate holidays and special occasions." The documentation referencing the apartment does not counterbalance the overwhelming evidence contained in the depositions (see 23 Jones St. Assoc. v Keebler-Beretta, 284 AD2d 109 [2001]), particularly given that neither Jodi nor her uncle testified at trial.

The record discloses no evidentiary error warranting reversal. The deposition transcripts, though unsigned, were properly considered since they were certified by the reporter and were not challenged as inaccurate (see Bennett v Berger, 283 AD2d 374 [2001]). Indeed, tenant's attorney utilized portions of the deposition transcripts at trial (see Morchik v Trinity School, 257 AD2d [*2]534, 535-536 [1999]). Further, even assuming that landlord failed to lay a proper foundation for admission of the June 1976 occupancy agreement as a business record, the document was otherwise admissible as an ancient document inasmuch as it was (1) more than 30 years old; (2) free of any indication of fraud or invalidity; and (3) maintained in a natural place of custody (see Tillman v Lincoln Warehouse Corp., 72 AD2d 40, 44-45 [1979]). Thus, the occupancy agreement was "self-authenticating pursuant to the ancient document rule ... and [was] properly received by the ... Court as proof of the facts stated therein" (Essig v 5670 58 Street Holding Corp., 50 AD3d 948, 949 [2008] [internal citations omitted]). Although the underlying holdover petition described the governing June 1976 occupancy agreement as a "Lease agreement dated May 1976," this irregularity did not materially mislead or confuse tenants or hinder the preparation of their defense (see Oxford Towers Co. v Leites, 41 AD3d 144 [2007]).

We have considered tenants' remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 22, 2009