Melick v. Ken's Serv. Station, Inc.

• Citation: 2014 N.Y. Slip Op. 51329,998 N.Y.S.2d 307,44 Misc.3d 143
• Decision Date: 21 August 2014
• Docket Number: No. 2012–1281ORC.,2012–1281ORC.
• Parties: Frances MELICK, Appellant, v. KEN'S SERVICE STATION, INC. and Sheryl A. Melick, Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

?44 Misc.3d 143
998 N.Y.S.2d 307
2014 N.Y. Slip Op. 51329

Frances MELICK, Appellant,
v.
KEN'S SERVICE STATION, INC. and Sheryl A. Melick, Respondents.

No. 2012–1281ORC.

Supreme Court, Appellate Term, Second Department, 9 & 10th Judicial Dist.

Aug. 21, 2014

Appeal from a final judgment of the Justice Court of the Town of Montgomery, Orange County (Richard Clarino, J.), entered April 10, 2012. The final judgment, insofar as appealed from, after a nonjury trial, upon awarding landlord arrears in additional rent, failed to award landlord possession and base rent in a nonpayment summary proceeding.
Present: IANNACCI, J.P., TOLBERT and GARGUILO, JJ.

ORDERED that the final judgment, insofar as appealed from, is modified by providing that, upon awarding landlord arrears in additional rent, landlord is also awarded possession; as so modified, the final judgment, insofar as appealed from, is affirmed, without costs.

In this commercial nonpayment summary proceeding, landlord sought a final judgment awarding it possession and arrears in base and additional rent, claiming that tenants had failed, beginning in July 2009, to pay $1,200 per month of the alleged monthly base rent of $2,450, as well as additional rent, pursuant to a month-to-month rental agreement. After a nonjury trial, the Justice Court found that there was a written lease in effect, pursuant to which the monthly base rent was $1,250, not $2,450. The court also found that tenants owed $5,147.29 in additional rent, plus interest. A final judgment was entered which, insofar as is relevant to this appeal, awarded landlord the sum of $6,243.87 and specifically declined to award landlord possession. Landlord appeals, arguing that she should have been awarded possession and arrears in base rent, in accordance with the month-to-month agreement she alleged.

The decision of a factfinder should not be disturbed upon appeal unless it is obvious that his conclusions could not be reached under any fair interpretation of the evidence ( see Claridge Gardens v. Menotti, 160 A.D.2d 544 [1990] ). Furthermore, the determination of a trier of fact as to issues of credibility is given substantial deference, as the factfinder's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords the factfinder a better perspective from which to evaluate the credibility of the witnesses ( see Vizzari v. State of New York, 184 A.D.2d 564 [1992]; Kincade v. Kincade, 178 A.D.2d 510 [1991] ). Upon a review...