Boltz v Ascolesi
Annotate this CaseDecided on July 13, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : WESTON PATTERSON, J.P., GOLIA and BELEN, JJ
2006-1109 K C.
Maude Boltz, Respondent,
against
Peter Ascolesi, Appellant, -and- "John And/or Jane Doe", Undertenants.
Appeal from a final judgment of the Civil Court of the City of New York, Kings County (Oymin Chin, J.), entered May 15, 2006. The final judgment granted possession to petitioner in a licensee proceeding. The appeal brings up for review
an order of the same court, entered June 12, 2006, denying occupant's motion for a new trial (see CPLR 5501 [a] [2]).
Final judgment affirmed without costs.
In this licensee summary proceeding (RPAPL 713 [7]), in which occupant claimed that he had succession rights to the subject rent-controlled apartment, it was not an improper exercise of discretion for the court to deny the pro se occupant, who had been granted a total of approximately 60 days of adjournments in order to find counsel and put his case together, a further adjournment to seek to put his documentary evidence into admissible form. A determination as to whether to grant an adjournment of a trial is addressed to the sound discretion of the court, and that discretion will not be disturbed upon appeal absent a showing of clear abuse (see Brusco v Davis-Klages, 302 AD2d 674 [2003]). Although it may be an improvident exercise of discretion to deny an adjournment where the evidence to be presented is material, where the adjournment is not sought in order to delay the proceedings and where the party seeking the adjournment has acted with due diligence to protect its interest (see Matter of Shepard, 286 AD2d 336 [2001]), at least two of these conditions were palpably not met in the [*2]present matter. Occupant had been granted two previous adjournments in order to obtain counsel, and by his own testimony, made little effort, confined to at most a few phone calls, to do so, despite warnings from both the court and landlord's counsel that he was faced with a difficult burden of proof. Nor did he testify to making any effort to find out how to conduct his case. He made no attempt to obtain eyewitness testimony until the lunch break of the trial date, seeking instead to rely upon documents containing an address as reported by him. Occupant could not outline any plausible reason why he had neither found counsel nor researched how to proceed, stating only that he was a pro se litigant and did not know how to proceed. The court could properly rule, based upon a balanced consideration of all of these factors, that a further adjournment was not warranted (see Terio v Terio, 190 AD2d 665 [1993]).
The decision to proceed in a matter of this nature without counsel is not without risk, as both the court and landlord's counsel had advised occupant on various occasions. A pro se litigant is not entitled to any greater rights than any other party, and cannot get concessions at the expense of another party's rights (see Sloninski v Weston, 232 AD2d 923 [1996]; Roundtree v Singh, 143 AD2d 995 [1988]). In the present matter, landlord had arranged for no fewer than eight witnesses, seven of whom testified, to be present on the trial date, and would have been severely inconvenienced had the trial been adjourned yet again. Moreover, contrary to occupant's assertions, the record reflects that the court gave occupant a great deal of leeway during the trial so that he could attempt to make out his case.
As noted, with the exception of his employer, who was not entirely sure where he lived, occupant made no attempt to produce witnesses, or identify witnesses that he might produce if given still more time. Landlord, on the other hand, produced numerous witnesses at trial, both residents and non-residents of the building, who testified to their individual acquaintance with the tenant of record, to having been in her apartment either for social visits or to make repairs during the relevant two-year period, and to seeing no evidence of any other resident, particularly a young male, besides the elderly female tenant of record. The court was entitled to credit this testimony (see 300 East 34th St. Co. v Habeeb, 248 AD2d 50 [1997]; University Towers Assocs. v Mintz, 15 Misc 3d 130[A], 2007 NY Slip Op 50662[U] [App Term, 2d & 11th Jud Dists]).
Occupant raised no new issues upon his motion pursuant to CPLR 4404 (b) for a new trial. Moreover, no showing was made that the proffered documents, most of which dated from 2002, prior to the relevant period, and were admittedly obtained during a time when occupant was not living in the apartment but using it as a mailing address, would decide the issue of residency in occupant's favor even if admitted into evidence. Therefore, the court below properly denied the motion.
Golia and Belen, JJ., concur.
Weston Patterson, J.P., taking no part.
Decision Date: July 13, 2007
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