Horsford v. Bacott, 8511.
| Court | New York Supreme Court Appellate Division |
| Citation | 32 A.D.3d 310,2006 NY Slip Op 06260,820 N.Y.S.2d 554 |
| Docket Number | 8511. |
| Parties | CLAUDE HORSFORD et al., Respondents, v. YVONNE BACOTT, Appellant, and "JOHN DOE" et al., Respondents. |
| Decision Date | 17 August 2006 |
v.
YVONNE BACOTT, Appellant, and
"JOHN DOE" et al., Respondents.
[32 A.D.3d 311]
Order of the Appellate Term of the Supreme Court, First Department, entered November 18, 2004, which affirmed a judgment of Civil Court, New York County (Cyril K. Bedford, J.), entered on or about November 17, 2003, after a nonjury trial, awarding possession of the subject premises to petitioners, affirmed, without costs.
In this proceeding to recover a rent-stabilized apartment for the use of a member of the landlords' immediate family (see Rent Stabilization Code [9 NYCRR] § 2524.4 [a] [1]), the dissent would have us set aside Civil Court's finding of fact in favor of the landlords, which Appellate Term has affirmed. The dissent would have us do this based solely on the theory—without any precedent in this Court—that the immediate family member's testimony was required to establish a prima facie case for the landlords. In support of this theory, which the tenant's counsel never argued in Civil Court, the dissent cites only an officially unreported decision of Kings County Civil Court—a decision that, by definition, does not address the standard of review to be applied by an appellate court on an appeal from a judgment rendered after a bench trial. We are not persuaded by the dissent's assertion that we should adopt the new rule it would have us apply, nor are we persuaded by the lower court authority the dissent cites in support of the rule. Accordingly, since the factual determination on which the judgment of Civil Court is based is supported by sufficient evidence and comports with the weight of the evidence, we affirm Appellate Term's order affirming that judgment.
Petitioner landlords are a married couple whose livelihood depends in part on the rental income they receive from the tenants of their five-story walk-up building. At trial, petitioner Daphne Horsford testified that she and her husband needed the subject apartment for their daughter because the daughter's room in petitioners' apartment was needed to accommodate Mrs. Horsford's brother and sister-in-law, who were about to immigrate to the United States from St. Kitts under Mrs. Horsford's sponsorship. At the close of petitioners' evidence, respondent's counsel moved to dismiss the petition for failure to present a prima facie case based upon the alleged inadequacy of the termination notice. Significantly, respondent's counsel did not argue that the testimony of petitioners' daughter was
required to establish a prima facie case in their favor. After trial, Civil Court determined, based on Mrs. Horsford's testimony, that petitioners genuinely intended to use the subject apartment for their daughter, and entered judgment accordingly. On appeal, the judgment was affirmed by Appellate Term.
We reject the dissent's view that...
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