Elbin Realty Co., LLC v Sheikh

[*1] Elbin Realty Co., LLC v Sheikh 2014 NY Slip Op 50977(U) Decided on June 13, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 13, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., ALIOTTA and SOLOMON, JJ.
2013-179 Q C

Elbin Realty Co., LLC, Respondent,

against

Akhtar Sheikh, Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Joseph E. Capella, J.), entered October 4, 2012. The judgment, after a nonjury trial, entered pursuant to a decision of the same court dated August 6, 2012, awarded plaintiff the principal sum of $2,550 and implicitly dismissed the counterclaim.

ORDERED that, on the court's own motion, defendant's notice of appeal from the decision dated August 6, 2012 is deemed a premature notice of appeal from the judgment entered October 4, 2012 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is affirmed, without costs.

Plaintiff commenced this action to recover, among other things, use and occupancy in the principal sum of $5,100, which allegedly accrued during a holdover period. Defendant counterclaimed to recover the sum of $25,000 for property damage and, in effect, sought a rent setoff based on a breach of the warranty of habitability. After a nonjury trial, the Civil Court implicitly dismissed the counterclaim and awarded plaintiff the principal sum of $2,550.

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]). Furthermore, the determination of a trier of fact as to issues of credibility is given substantial deference, as a 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 [1991]). As the record supports the Civil Court's determination, we find no reason to disturb the judgment.

Accordingly, the judgment is affirmed.

Weston, J.P., Aliotta and Solomon, JJ., concur.

Decision Date: June 13, 2014