Beverly Holding NY, LLC v. Blackwood

• Decision Date: 31 May 2019
• Docket Number: 2017-1915 K C
• Citation: 63 Misc.3d 160 (A),115 N.Y.S.3d 810 (Table)
• Parties: BEVERLY HOLDING NY, LLC, Appellant, v. Tamara BLACKWOOD, Respondent.
• Court: New York Supreme Court — Appellate Term

63 Misc.3d 160 (A)

115 N.Y.S.3d 810 (Table)

BEVERLY HOLDING NY, LLC, Appellant,

v.Tamara BLACKWOOD, Respondent.

2017-1915 K C

Supreme Court, Appellate Term, New York.

Decided on May 31, 2019

Alter & Barbaro, Esqs. (Nichole Castillo of counsel), for appellant.

Camba Legal Services, Inc. (Renee Murdock of counsel), for respondent.

PRESENT: MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ

Appeal from a final judgment of the Civil Court of the City of New York, Kings County (Kimberley S. Slade, J.), entered August 22, 2017. The final judgment, entered pursuant to a decision of that court (John H. Stanley, J.) dated June 23, 2017, after a nonjury trial, dismissed the petition in a holdover summary proceeding.

ORDERED that the final judgment is affirmed, without costs.

In this holdover proceeding, commenced by landlord's predecessor, the petition alleges that tenant's apartment is not rent regulated because it is within a building containing fewer than six residential units. At a nonjury trial, landlord's predecessor claimed that the building contains five residential units, and a commercial storage unit on the ground floor, rear of the building. Tenant contended that her apartment is rent stabilized because the ground-floor, rear unit had been used as a residential dwelling by at least two different tenants. The Civil Court denied landlord's predecessor's midtrial request for a continuance in order to produce one of the former tenants of the alleged sixth dwelling unit. Following the trial, the court issued a decision dated June 23, 2017, in which it awarded tenant a final judgment dismissing the petition with prejudice, finding that the building contains or did contain six residential units and therefore tenant's apartment is subject to rent stabilization. Also on June 23, 2017, a stipulation was entered into in which it was agreed that landlord would be substituted for landlord's predecessor in the caption and final judgment. A final judgment was entered on August 22, 2017 pursuant to the decision and stipulation.

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] ).

It is undisputed that five of the units in the building are residential. At trial, tenant and tenant's attorney's paralegal testified that they had been inside a sixth unit, the ground-floor, rear unit, and had observed that it was set up as a dwelling unit (including a kitchen, bathroom, and bed), and numerous photographs depicting that unit were admitted into evidence without objection. Tenant testified that the apartment contained "a living room with a closet ... a kitchen with upper-lower cabinets, a hot plate, a refrigerator [and] a three-piece bathroom, a shower, toilet, medicine cabinet and storage." In contrast, landlord's predecessor's witness lacked personal knowledge of the layout of the unit, installation of fixtures, furniture, or any lease or agreement with the former tenant, who allegedly had rented the unit for...