32-05 Newtown Ave. Assoc., LLC v Caguana

[*1] 32-05 Newtown Ave. Assoc., LLC v Caguana 2015 NY Slip Op 51247(U) Decided on August 12, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 12, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
2013-2359 Q C

32-05 Newtown Avenue Associates, LLC, Respondent, August 12, 2015

against

Rosa E. Caguana, Appellant, -and- SEGUNDO CAGUANA, LIGA JESUS DE GRAN PODER, INC., "JOHN DOE," "JANE DOE," and "XYZ CORP.," Undertenants.

Appeal from a final judgment of the Civil Court of the City of New York, Queens County (Terrence C. O'Connor, J.), entered October 11, 2013. The final judgment, after a nonjury trial, awarded landlord possession in a holdover summary proceeding.

ORDERED that the final judgment is reversed, without costs, and the matter is remitted to the Civil Court for the entry of a final judgment dismissing the petition.

Landlord commenced this holdover proceeding in the commercial landlord-tenant part, alleging that the premises were rented for commercial purposes. After a nonjury trial, the Civil Court, finding that tenant was illegally occupying the subject premises residentially, that landlord knew about this illegal use, and that landlord had demonstrated that it had properly terminated the tenancy, awarded landlord possession, but it did not award landlord use and occupancy because of landlord's "unclean hands." Tenant appeals from the final judgment awarding landlord possession.

In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that 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 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, contrary to landlord's arguments on appeal, there is no basis to disturb the Civil Court's findings that tenant was residentially occupying the subject unit in contravention of the certificate of occupancy and that landlord had knowledge of this illegal use.

In light of the Civil Court's findings as to the nature of the occupancy, the misrepresentation thereof in the petition, and the strong legislative policy that all summary proceedings to recover premises that are occupied residentially be commenced in the Housing Part (CCA 110 [a] [5]; see L 1972, ch 982, § 1, as amended by L 1978, ch 310, § 4; Uniform Rules for NY City Civ Ct [22 NYCRR] § 208.42 [a]), the Civil Court should have dismissed the petition (see U.B.O. Realty Corp. v Mollica, 257 AD2d 460 [1999]; Artykova v Avramenko, 36 Misc 3d 42 [App Term, 2d, 11th & 13th Jud Dists 2012]). In view of the foregoing, we do not reach the issue of whether the subject apartment is rent stabilized.

Accordingly, the final judgment is reversed and the matter is remitted to the Civil Court for the entry of a final judgment dismissing the petition.

Pesce, P.J., Aliotta and Elliot, JJ., concur.

Decision Date: August 12, 2015