Friendly Hands Apts. LLC v Friendly Hands, Inc.

[*1] Friendly Hands Apts. LLC v Friendly Hands, Inc. 2020 NY Slip Op 50764(U) Decided on June 25, 2020 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 25, 2020
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Cooper, J.P., Edmead, Torres, JJ.
570344/19

Friendly Hands Apartments LLC, Petitioner-Landlord-Respondent, -

against

Friendly Hands, Inc., Respondent-Tenant-Appellant, -and- Friendly Hands Apartments Housing Development Fund Company, Inc., Respondent-Undertenant-Appellant.

Tenant and undertenant appeal from a "decision and order" of the Civil Court of the City of New York, New York County (Dakota D. Ramseur, J.), entered May 28, 2019, after a nonjury trial, which awarded possession to landlord in a holdover summary proceeding.

Per Curiam.

Appeal from "decision and order" (Dakota D. Ramseur, J.), entered May 28, 2019, deemed an appeal from the final judgment (same court and Judge) entered on the same date, and so considered (see CPLR 5520[c]), final judgment affirmed, with $25 costs.

A fair interpretation of the evidence adduced at the trial of this holdover proceeding supports the conclusion that tenant breached numerous obligations under the governing commercial lease agreement. The lease specifically prohibited use of the demised premises as "soup kitchen or other free food distribution center." Despite this prohibition, which was an important contingency to maintain the low—income housing tax credit for the nonparty investor-member of petitioner-landlord, the evidence showed, and the trial court expressly found, that tenant operated the premises "as a soup kitchen or food pantry, as recently as the final day of trial, with no intention to stop."

The evidence also supports the finding that tenant breached the lease by, inter alia, failing to procure comprehensive public liability and property damage insurance naming landlord as an additional insured, failing to obtain a final public assembly permit and by making extensive renovations without the necessary permits. In the latter regard, although landlord was aware of and acquiesced in the installation of kitchen equipment in the demised premises, which was authorized under a 2010 Loan Agreement, tenant "still was required, but failed, to obtain the required permits or governmental approvals prior to or after the work was completed" (1894 [*2]Eastchester Professional Bldg., Ltd. v Christopher, 59 Misc 3d 141[A], 2018 NY Slip Op 50626[U] [App Term, 1st Dept 2018]). As the trial court noted, the issue was not the kitchen's existence but, rather, its permitted use under the lease.

Nor did tenant establish its defense of unclean hands. Tenant failed to adduce evidence showing that landlord was "guilty of immoral or unconscionable conduct directly related to the subject matter" (Frymer v Bell, 99 AD2d 91, 96 [1984]).

On a bench trial, the decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence, especially when the findings of fact rest in large measure on considerations relating to the credibility of witnesses (see Claridge Gardens v Menotti, 160 AD2d 544, 544-545 [1990]). Here, the evidence supports the trial court's findings. The admittedly tangled web of relationships between the parties does not obscure tenant's multiple lease defaults, firmly established at trial, nor do they warrant disturbing the court's determinations of credibility. The motive, interests, truthfulness and other tests of the reliability of witnesses can be passed upon with greater safety by a trial judge who sees and hears the witnesses than by appellate judges who simply read the printed record (see Annan v New York State Off. of Mental Health, 165 AD3d 1020, 1021 [2018]).

We have examined appellants' remaining contentions and find them unavailing.

All concur.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Clerk of the Court
Decision Date: June 25, 2020