Rush Realty Assoc., LLC v Weston

[*1] Rush Realty Assoc., LLC v Weston 2009 NY Slip Op 52272(U) [25 Misc 3d 136(A)] Decided on November 5, 2009 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 5, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2008-1603 K C.

Rush Realty Associates, LLC, Respondent,

against

Gretel Weston, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (John S. Lansden, J.), entered January 4, 2008, and an order of the same court dated January 22, 2008. The order entered January 4, 2008, insofar as appealed from, granted landlord's motion to restore the proceeding to the calendar for execution of the warrant of eviction. The order dated January 22, 2008 granted a motion by landlord to amend the order dated January 4, 2008 to delete therefrom a provision directing the entry of a final judgment.

ORDERED that the order entered January 4, 2008, insofar as appealed from, is affirmed without costs; and it is further,

ORDERED that the appeal from the order dated January 22, 2008 is dismissed.

This nuisance holdover summary proceeding was settled by a stipulation, dated June 21, 2006, in which the parties agreed to, among other things, a probationary period of two years during which tenant was not to engage in any of the behaviors listed in the notice of termination. A final judgment was entered, and a warrant of eviction, issued on July 13, 2006, was stayed pursuant to the terms of the stipulation. During the probationary period, landlord moved to restore the proceeding to the calendar for execution of the warrant, alleging that tenant had engaged in behavior prohibited by the stipulation. After a hearing, the Civil Court, crediting the testimony of landlord's witnesses, found that tenant had breached the stipulation and granted landlord's motion.

Issues of credibility should be resolved by the trier of fact, since it had the opportunity to [*2]observe and evaluate the testimony and demeanor of the witnesses (see McGuirk v Mugs Pub, 250 AD2d 824 [1998]; Richard's Home Ctr. & Lbr. v Kraft, 199 AD2d 254 [1993]; Claridge Gardens v Menotti, 160 AD2d 544 [1990]), and its decision should not be disturbed on appeal unless it is obvious that the determination could not have been reached under any fair interpretation of the evidence (see Claridge Gardens, 160 AD2d 544). We find that the record amply supports the Civil Court's determination that tenant breached the stipulation. Accordingly, the order entered January 4, 2008, insofar as appealed from, is affirmed.

The appeal from the order dated January 22, 2008, which granted a motion by landlord to amend the order dated January 4, 2008 to delete therefrom a provision directing the entry of a final judgment, is dismissed on the ground that tenant is not aggrieved thereby (CPLR 5511).

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: November 05, 2009