Hillside Place, LLC v Lewis

[*1] Hillside Place, LLC v Lewis 2010 NY Slip Op 52056(U) [29 Misc 3d 139(A)] Decided on November 26, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 26, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and STEINHARDT, JJ
2009-1305 Q C.

Hillside Place, LLC, Appellant,

against

Justin Ashton Lewis, Respondent. -and- "JOHN DOE" and "JANE DOE", Undertenants.

Appeal, on the ground of inadequacy, from a final judgment of the Civil Court of the City of New York, Queens County (Anne Katz, J.), entered September 9, 2008. The final judgment, after a nonjury trial, awarded landlord possession and the sum of $8,871.73.

ORDERED that the final judgment is affirmed, without costs.

In this residential nonpayment proceeding, tenant asserted that landlord had failed to make certain repairs and had failed to effectively correct a mouse and roach infestation (see Real Property Law § 235-b). After a nonjury trial, the Civil Court found that tenant owed $9,818.25 through August 2008, but was entitled to a 15% abatement for the months of October 2007 through February 2008, and a 5% abatement for March 2008, for a total abatement of $946.52. Thus, landlord was awarded possession and the sum of $8,871.73. Landlord appeals, arguing that tenant was not entitled to any abatement. We affirm.

The decision of a 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 (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]). The determination of the trier of fact as to issues of credibility is given substantial deference, as the trial court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Vizzari v State of New York, 184 AD2d 564 [1992]; Kincade v Kincade, 178 AD2d 510, 511 [1991]).

The Civil Court's finding that landlord failed to timely make certain repairs and failed to properly correct the mouse and roach infestations for the months in question is supported by the record, including tenant's testimony and the court's own inspection of the premises. We note that landlord's claim that tenant was at fault for the infestations and that tenant's actions and omissions made it impossible for landlord to effectively exterminate is contradicted by both tenant's testimony and the testimony of the exterminator called by landlord. Accordingly, the final judgment is affirmed. [*2]

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: November 26, 2010