Melick v Ken's Serv. Sta., Inc.
Annotate this CaseDecided on August 21, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : IANNACCI, J.P., TOLBERT and GARGUILO, JJ.
2012-1281 OR C
Frances Melick, Appellant,
against
Ken's Service Station, Inc. and SHERYL A. MELICK, Respondents.
Appeal from a final judgment of the Justice Court of the Town of Montgomery, Orange County (Richard Clarino, J.), entered April 10, 2012. The final judgment, insofar as appealed from, after a nonjury trial, upon awarding landlord arrears in additional rent, failed to award landlord possession and base rent in a nonpayment summary proceeding.
ORDERED that the final judgment, insofar as appealed from, is modified by providing that, upon awarding landlord arrears in additional rent, landlord is also awarded possession; as so modified, the final judgment, insofar as appealed from, is affirmed, without costs.
In this commercial nonpayment summary proceeding, landlord sought a final judgment awarding it possession and arrears in base and additional rent, claiming that tenants had failed, beginning in July 2009, to pay $1,200 per month of the alleged monthly base rent of $2,450, as well as additional rent, pursuant to a month-to-month rental agreement. After a nonjury trial, the Justice Court found that there was a written lease in effect, pursuant to which the monthly base rent was $1,250, not $2,450. The court also found that tenants owed $5,147.29 in additional rent, plus interest. A final judgment was entered which, insofar as is relevant to this appeal, awarded landlord the sum of $6,243.87 and specifically declined to award landlord possession. Landlord appeals, arguing that she should have been awarded possession and arrears in base rent, in accordance with the month-to-month agreement she alleged.
The decision of a factfinder should not be disturbed upon appeal unless it is obvious that his 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 the factfinder's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords the factfinder a better perspective from which to evaluate the credibility of the witnesses (see Vizzari v State of New York, 184 AD2d 564 [1992]; Kincade v Kincade, 178 AD2d 510 [1991]). Upon a review of the record, we find no basis to disturb the Justice Court's finding that there was a written lease in effect between the parties. Pursuant to the terms of that lease, tenants were current on their base rent. Consequently, the Justice Court properly awarded landlord no base rent.
The Justice Court found that tenants owed additional rent, a finding which we do not review because tenants have not cross-appealed from the final judgment. "[T]he failure to pay [*2] additional rent' under a commercial lease may be the basis for an order and warrant of eviction" (Morningside Studios v Lucille Hotel Corp., 70 Misc 2d 760, 762 [Civ Ct, NY County 1972]). Consequently, since, in a summary proceeding, a monetary award in favor of the landlord can only be made concomitant with an award of possession (615 Nostrand Ave. Corp. v Roach, 15 Misc 3d 1, 4 [App Term, 2d & 11th Jud Dists 2006]), landlord was entitled to a final judgment of possession. We note, however, that, as it appears that tenants deposited the full amount of the judgment into court, a warrant should not issue (3881 Richmond Ave. Realty, Inc. v Richmond Amboy Realty, 17 Misc 3d 132[A], 2007 NY Slip Op 52001[U] [App Term, 2d & 11th Jud Dists 2007]; Bentone v Jimenez, NYLJ, Mar. 28, 1991 [App Term, 9th & 10th Jud Dists]).
In view of the foregoing, the final judgment, insofar as appealed from, is modified by providing that, upon awarding landlord arrears in additional rent, landlord is also awarded possession.
Iannacci, J.P., Tolbert and Garguilo, JJ., concur.
Decision Date: August 21, 2014
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