103rd Assoc. LLC v Hossain

[*1] 103rd Assoc. LLC v Hossain 2013 NY Slip Op 51919(U) Decided on November 20, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 20, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Hunter, Jr., J.P., Schoenfeld, Shulman, JJ
No. .13-135

103rd Associates LLC, Plaintiff-Respondent,

against

Belal Hossain, Defendant-Appellant.

Plaintiff appeals from a judgment of Civil Court of the City of New York, New York County (Andrea Masley, J.), entered on or about May 8, 2012, after a nonjury trial, in favor of plaintiff and awarding it damages in the principal sum of $1,999.23.

Per Curiam.

Judgment (Andrea Masley, J.), entered on or about May 8, 2012, reversed, without costs, and a new trial ordered

While the evidence may tend to support a finding that defendant-tenant vacated the apartment premises in December 2005, prior to the expiration of his lease, the existing record is insufficient to permit informed appellate review of the court's ultimate determination that "defendant failed to pay rent owing for November and December 2005 and January 2006 totaling $2,646.21." In this regard, no testimony was adduced in support of plaintiff-landlord's claim that rent was unpaid for period of time at issue. Although plaintiff proffered, without explanatory testimony, a written "billing history" purportedly showing the amount of rent owed by defendant, this same document indicates that substantial payments were accepted on defendant's account from November 2005 until March 2006, when plaintiff relet the premises. Since the incomplete record now before us contains no indication of the nature of these payments, and whether they were or should have been considered in calculating the amount of rent owed by defendant, informed appellate review is not possible. In the circumstances, fairness dictates that the matter be tried anew.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 20, 2013