Leya, LLC v. Kodicek

• Decision Date: 01 November 2021
• Docket Number: 570033/21
• Citation: 73 Misc.3d 133 (A),154 N.Y.S.3d 577 (Table)
• Parties: LEYA, LLC, Petitioner-Landlord-Appellant, v. Angela KODICEK, Respondent-Tenant-Respondent.
• Court: New York Supreme Court — Appellate Term

73 Misc.3d 133 (A)
154 N.Y.S.3d 577 (Table)

LEYA, LLC, Petitioner-Landlord-Appellant,
v.
Angela KODICEK, Respondent-Tenant-Respondent.

570033/21

Supreme Court, Appellate Term, New York, First Department.

Decided on November 1, 2021

Per Curiam.

Final judgment (Michelle D. Schreiber, J.), entered on or about February 18, 2020, affirmed, with $25 costs.

We perceive no basis to disturb the trial court's determination that landlord failed to meet its burden of establishing that tenant's apartment is exempt from rent stabilization based upon a high rent vacancy said to have occurred in 2009 when, following the death of the rent controlled tenant, the apartment was rented to four co-tenants, including Mario and Margaret Zambrano, at $2,400 per month.

On a bench trial, "the decision of the 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, especially when the findings of fact rest in large measure on considerations relating to the credibility of witnesses" ( 409-411 Sixth St., LLC v Mogi , 22 NY3d 875, 876-877 [2013], quoting Claridge Gardens v Menotti , 160 AD2d 544, 544-545 [1990] ). Applying this standard, we find no basis to disturb the trial court's determination.

The trial court found the testimony of landlord's witnesses, as well as the testimony of landlord's principal, agent and attorney who were called by tenant, to be lacking in credibility, i.e. containing "inconsistencies, hesitation and evasion." A trial court's determination as to credibility is given substantial deference as the court has the opportunity to observe and evaluate the testimony and demeanor of the witnesses, thereby affording the trial court a better perspective from which to evaluate the credibility of the witnesses (see Ausch v St. Paul Fire & Mar. Ins. Co. , 125 AD2d 43, 49 [1987], appeal denied 70 NY2d 610 [1987] ).

Landlord's claim also lacks support in contemporary documentary evidence and is, in fact, substantially inconsistent with that evidence. No DHCR registrations were filed for the building from 1984 through 2014, no notices required for high rent deregulation were filed or...