Second Farms Neighborhood HDFC v Lessington (2011 NY Slip Op 50929(U))

Second Farms Neighborhood HDFC v Lessington

2011 NY Slip Op 50929(U) [31 Misc 3d 144(A)]

Decided on May 26, 2011

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Second Farms Neighborhood HDFC, Petitioner-Landlord-Appellant, - -

against

Alphonso Lessington, Respondent-Tenant-Respondent, - and - "John Doe" and "Jane Doe," Respondents.

Landlord appeals from a final judgment of the Civil Court of the City of New York, Bronx County (Louis Villella, J.), entered on or about October 14, 2009, after a nonjury trial, in favor of tenant dismissing the petition in a holdover summary proceeding.

Final judgment (Louis Villella, J.), entered on or about October 14, 2009, affirmed, with $25 costs.

Civil Court properly determined that the evidence adduced at trial in this holdover summary proceeding commenced pursuant to RPAPL 711(5) and Real Property Law § 231(1), was insufficient to sustain the landlord's burden of proving "by a preponderance of the credible evidence that the subject premises were used to facilitate trade in drugs and that the tenant knew or should have known of the activities and acquiesced in the illegal drug activity in the apartment" (855-79 LLC v Salas, 40 AD3d 553, 554 [2007]; see Matter of 88-09 Realty v Hill, 305 AD2d 409, 410 [2003]). On this record, neither the quantity of contraband recovered inside the apartment, nor the possession charges brought against tenant, warrants the conclusion that the apartment was utilized as a focal point for drug activity or that any such illegal use occurred "customarily or habitually upon the premises" (855-79 LLC v Salas, 40 AD3d at 555; see New York City Hous. Auth. v Grillasca, 18 Misc 3d 524, 525 [2007]; Grosfeld Realty Co. v Lagares, 150 Misc 2d 22, 23 [1989]).

"On a bench trial, the decision of the fact-finding court should not be disturbed on 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" (Claridge Gardens v Menotti, 160 AD2d 544, 544-545 [1990]; see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]). Under these circumstances, we find no basis to disturb the trial court's fact-based determination that the evidence presented did not warrant a forfeiture by tenant of this long-term [*2]tenancy (see 554 West 148th St. Assoc. LLC v Thomas, 8 Misc 3d 132[A], 2005 NY Slip Op 51139[U] [2005]; cf. Claridge Gardens v Menotti, 160 AD2d at 544-545).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: May 26, 2011