Escorp Inc. v Myers

[*1] Escorp Inc. v Myers 2010 NY Slip Op 50193(U) [26 Misc 3d 137(A)] Decided on February 9, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 9, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld JJ
570253/09.

Escorp Inc., Petitioner-Respondent,

against

Gene Myers, Respondent-Appellant.

Respondent Myers appeals from a final judgment of the Civil Court of the City of New York, New York County (Peter H. Moulton, J.), entered July 24, 2008, which, after a jury trial, and upon an order denying respondent Myers' motion to set aside the verdict, awarded possession to petitioner in a holdover summary proceeding.

Per Curiam.

Final judgment (Peter H. Moulton, J.), entered July 24, 2008, affirmed, without costs.

This long-pending licensee holdover proceeding has spawned several prior appeals (see e.g. 43 AD3d 347 [2007]; 4 Misc 3d 136[A] [2004], 2004 NY Slip Op 50831[U]). The jury's verdict in favor of petitioner, rendered upon the full and fair retrial of this matter, rests on a fair interpretation of the evidence and is not disturbed. With respect to appellant's succession claim, the trial evidence supports the jury's finding that he did not primarily reside at the subject rent controlled apartment premises for the requisite one-year period prior to the record tenant's death, and thus was not entitled to succession rights (see Rent and Eviction Regulations [9 NYCRR] 2204.6[d][1]). That finding is amply supported by testimonial evidence, and substantial documentation listing appellant's residence as another rent controlled Manhattan apartment (see generally Brullo v Myers, 11 Misc 3d 26 [2006]). While appellant maintained that he used that other apartment as a painting studio, extensive evidence was presented with regard to appellant's use of the respective apartments, and we find no basis to disturb the jury's credibility determinations (see Taylor v Lehr Constr. Corp., 57 AD3d 214 [2008]).

Civil Court providently exercised its discretion in the manner it which it ordered the reconstruction of portions of the court file, which were misplaced at some point between the first trial of this proceeding and the retrial. We note that appellant, who was afforded sufficient opportunity to reconstruct the files and obtain any necessary documents to substantiate his succession claim, does not specify which aspects of the record he believes were not properly reconstructed. Moreover, to the extent that appellant identifies generally materials that he alleges were not properly reconstructed (e.g. cards, post cards and pictures), those materials would seem to be relevant on the issue of whether appellant and the record tenant were nontraditional family members (see Rent and Eviction Regulations [9 NYCRR] 2204.6[d][3][i]), an issue the jury did not have to reach because it determined that the two did not primarily reside together in the [*2]subject rent controlled apartment premises for the requisite one-year period prior to the record tenant's death.

We have considered and rejected appellant's remaining contentions.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: February 09, 2010