Lenoxville Assoc., L.P. v Downs

[*1] Lenoxville Assoc., L.P. v Downs 2013 NY Slip Op 51399(U) Decided on August 23, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 23, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., Torres, JJ
570076/12.

Lenoxville Associates, L.P., Petitioner-Respondent,

against

Louisa Downs, Respondent-Appellant, -and- John Doe and Jane Doe, Respondents.

Respondent Louisa Downs appeals from a final judgment of the Civil Court of the City of New York, New York County (Cheryl J. Gonzales, J.), entered on November 18, 2011, after a nonjury trial, which awarded possession to petitioner in a holdover summary proceeding.

Per Curiam.

Final judgment (Cheryl J. Gonzales, J.), entered November 18, 2011, reversed, without costs, and new trial ordered.

Upon the trial of this licensee holdover proceeding, the court rejected the pro se respondent-appellant's claimed entitlement to succeed to her deceased grandmother's
project-based section 8 tenancy and awarded petitioner a possessory judgment. The court's resolution of the matter appears to have been founded on inconsistent determinations, with the court in its written decision finding that appellant "credibly testified that she has resided in the apartment since April 2007" — approximately 28 months before the tenant's death — but going on to conclude that appellant "failed to establish by a preponderance of the evidence that she occupied the apartment with [the tenant] for the requisite period." To the extent the court's written decision, and the seemingly contradictory findings contained therein, can be read to reflect a view that appellant's sparse documentary submission was insufficient to support her succession claim, we note that a paucity of documentary evidence is not necessarily fatal to such a claim where, as the court itself acknowledged was the case here, credible testimonial evidence is presented at trial by or on behalf of a would-be successor (see 300 E. 34th St. Co. v Habeeb, 248 AD2d 50, 55 [1997]; see also 23 Jones St. Assocs. v Keebler-Beretta, 284 AD2d 109 [2001]). In this posture, and since it appears that additional documents bearing favorably on appellant's succession claim may exist but were unavailable at the time of trial, fairness dictates that the matter be tried anew. In directing a new trial, we reach no other issue. [*2]

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: August 23, 2013