Donnelly v Cresser

[*1] Donnelly v Cresser 2015 NY Slip Op 51062(U) Decided on July 7, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 7, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : IANNACCI, J.P., MARANO and GARGUILO, JJ.
2014-1155 S C

Daniel W. Donnelly, Respondent, July 7, 2015

against

Bonnie Cresser, Defendant, -and- TIFFANY BUSTO, Appellant.

Appeal from a judgment of the District Court of Suffolk County, First District (Vincent J. Martorana, J.), entered November 6, 2013. The judgment, entered pursuant to a decision of the same court dated November 6, 2013, after a nonjury trial, awarded plaintiff the principal sum of $8,350 as against defendant Tiffany Busto.

ORDERED that, on the court's own motion, the notice of appeal from the decision dated November 6, 2013 is deemed a notice of appeal from the judgment entered November 6, 2013 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is affirmed, without costs.

Plaintiff commenced this proceeding against his former tenant, Bonnie Cresser, and her guarantor on the lease, Tiffany Busto. At a nonjury trial, plaintiff demonstrated that the rider to the lease between plaintiff and Cresser, to which Busto was a guarantor through September 2009, provided for additional monthly rent of $1,000 for each individual living in the subject house who was not listed on the lease. Plaintiff testified that two individuals, who were not listed on the lease, were living in the basement of the house from June 2009 until November 2009. Busto stated under oath during the course of the trial that the second individual had never lived in the house, but elected not to testify after plaintiff rested. The District Court found, insofar as is relevant to this appeal, that Busto was liable for $2,000 a month for June 2009 through September 2009 and for attorney's fees of $350. A judgment was entered against Busto awarding plaintiff the principal sum of $8,350.

On appeal, Busto argues that she was prejudiced by her co-defendant's absence at the trial, that plaintiff lied under oath, and that plaintiff did not prove that any extra individuals occupied the premises prior to September 2009. Busto also makes new allegations regarding one of the two additional individuals alleged to have lived in the house, which we may not consider because they were not available to the trial court (see Chimarios v Duhl, 152 AD2d 508 [1989]). 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 witnesses affords it a better perspective from which to assess their credibility (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824, 826 [2008]). Here, the record supports the District Court's determination. Moreover, while Busto alleges that her side of the story was not heard because, among other reasons, her co-defendant did not testify, she did not request an adjournment of the trial to a date when her co-defendant could appear, nor did she avail herself of the opportunity to testify.

Accordingly, the judgment is affirmed.

Iannacci, J.P., Marano and Garguilo, JJ., concur.

Decision Date: July 07, 2015