Horsford v. Bacott

• Decision Date: 17 August 2006
• Docket Number: 8511.
• Citation: 32 A.D.3d 310,2006 NY Slip Op 06260,820 N.Y.S.2d 554
• Parties: CLAUDE HORSFORD et al., Respondents, v. YVONNE BACOTT, Appellant, and "JOHN DOE" et al., Respondents.
• Court: New York Supreme Court — Appellate Division

32 A.D.3d 310

820 N.Y.S.2d 554

2006 NY Slip Op 06260

CLAUDE HORSFORD et al., Respondents, v.YVONNE BACOTT, Appellant, and "JOHN DOE" et al., Respondents.

8511.

Appellate Division of the Supreme Court of the State of New York, First Department.

August 17, 2006.

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 (seeRent 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, petitionerDaphne 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 petitioners could not sustain their burden of proving a good faith intention to have their daughter use the apartment "as . . . her primary residence in the City of New York"(Rent Stabilization Code[9 NYCRR] § 2524.4 [a][1]) without presenting the testimony of the daughter herself.We again note that respondent raises this argument for the first time on appeal, her counsel having failed to make it during trial, when it may have been possible for petitioners to rectify any perceived deficiency in their proof.For this reason the principle from Chateau D' If Corp. v City of New York (219 AD2d 205, 209[1996], lv denied88 NY2d 811[1996]) relied upon by the dissent has no application here, since, if the issue had been raised at the proper point in Civil Court, petitioners could have addressed it.In any event, Mrs. Horsford's testimony, if credited by the factfinder, was sufficient to prove petitioners' intentions and good faith.Further, we see no grounds on which to disturb Civil Court's finding of fact on the issue of good faith, which was based largely on considerations relating to the credibility of the testifying witness (seePowers v Babic,177 AD2d 432[1991]).The principle that, in the context of a nonjury trial, the trial court's credibility-based findings of fact should be affirmed unless incompatible with any fair interpretation of the evidence (seeThoreson v Penthouse Intl.,80 NY2d 490, 495[1992]) applies as much to Civil Court as to Supreme Court(see300 E. 34th St. Co. v Habeeb,248 AD2d 50, 54[1997][Tom, J.];Powers v Babic, supra;Claridge Gardens v Menotti,160 AD2d 544, 544-545[1990]).Although this Court enjoys broad powers to review the facts, "due regard must be given to the decision of the Trial Judge who was in a position to assess the evidence and the credibility of the witnesses"(300 E. 34th St. Co. v Habeeb,248 AD2d at 54-55[internal quotation marks and citation omitted]).

We have considered respondent's remaining arguments and find them unavailing.

Concur—Friedman, Williams and Sweeny, JJ.

Tom, J.P., and Andrias, J., dissent in a memorandum by Andrias, J., as follows:

Because petitioners have failed to make out all the elements of their prima facie case seeking eviction of respondent from her rent stabilized one-room apartment pursuant...