New York City Hous. Auth. v Deraffele

[*1] New York City Hous. Auth. v Deraffele 2020 NY Slip Op 51439(U) Decided on November 30, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 30, 2020
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Cooper, J.P., Higgitt, McShan, JJ.
20-152

New York City Housing Authority, Plaintiff-Respondent, -

against

John Deraffele, Defendant-Appellant.

Defendant appeals from a "decision and order" of the Civil Court of the City of New York, New York County (Lisa S. Headley, J.), entered on or about January 10, 2020, after a nonjury trial, in favor of plaintiff and awarding it damages in the sum of $7,348.36.

Per Curiam.

Appeal from "decision and order" (Lisa S. Headley, J.), entered on or about January 10, 2020, deemed an appeal from the ensuing judgment (same court and Judge) entered February 27, 2020, and so considered (see CPLR 5520[c]), judgment affirmed, with $25 costs.

The trial court's determination that plaintiff Housing Authority was entitled to recoup the section 8 subsidy paid to defendant-landlord for the period December 1, 2011 through June 30, 2012, is supported by a fair interpretation of the evidence (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]). The totality of the evidence before the trial court supports the finding that the nonparty tenant for whom the subsidy was paid (Clinkscales) lived elsewhere as of December 1, 2011 (see New York City Hous. Auth. v Reichman, 65 Misc 3d 127[A], 2019 NY Slip Op 51506[U] [App Term, 1st Dept 2019]). This evidence includes the notice defendant served upon Clinkscales, terminating her lease for the subject apartment as of October 31, 2011, Clinkscales' new lease for an apartment at a different location commencing December 1, 2011, and proof that a section 8 subsidy was paid to Clinkscales' new landlord beginning December 1, 2011. The trial court, which was in a position to assess the credibility of witnesses, credited plaintiff's evidence while finding defendant's uncorroborated contention, that Clinkscales continued to live in the subject apartment through June 2012, not credible.

The trial court providently exercised its discretion in granting plaintiff a brief adjournment to secure a different witness with knowledge of the relevant contract documents. Nor was it improper to allow plaintiff to call this witness despite the omission of her name from plaintiff's list of proposed witnesses, since defendant never made an objection at the outset of the proffered testimony (see Simon v Indursky, 211 AD2d 404, 405 [1995]).

Defendant's remaining contentions are either not properly before us on this appeal, [*2]unpreserved or without merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
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Decision Date: November 30, 2020