Appeal from a final judgment of the District Court of Suffolk County, Fifth District (James P. Flanagan, J.), entered December 9, 2004. The final judgment, after a nonjury trial, awarded landlord possession and the sum of $27,898.05.

Final judgment unanimously affirmed without costs.

In this commercial nonpayment summary proceeding, tenant sought to prove, essentially through the testimony of its president, that it vacated the subject premises and delivered the keys to landlord before the action commenced, thereby surrendering possession and depriving the court of subject matter jurisdiction over a summary
proceeding commenced to recover such possession (see Sowalsky v MacDonald Stamp Co., 31 AD2d 582 [1968]; Warrin v Haverty, 149 App Div 564, 567-568 [1912]; Benben v Di Martini, 4 Misc 3d 135[A], 2004 NY Slip Op 50788[U] [App Term, 9th & 10th Jud Dists]; 2 Dolan, Rasch's Landlord and Tenant—Summary Proceedings §§ 38:26 - 38:27, at 593-594 [4th ed]). The court credited the contrary evidence of landlord's agent, who testified that tenant sought to surrender possession (a surrender landlord claimed it refused), inter alia, by turning over the keys, several weeks after the proceeding commenced, thereby establishing the court's jurisdiction over the proceeding (Sowalsky v MacDonald Stamp Co., 31 AD2d 582, supra; Benben v Di Martini, 4 Misc 3d 135[A], 2004 NY Slip Op 50788[U], supra; Eastrich No. 80 Corp. v Patrolmen's Benevolent Assn. of N.Y. City Tr. Police Dept., 180 Misc 2d 98, 99 [App Term, 1st [*2]Dept 1999]). The court's determination to credit landlord's evidence and to reject tenant's on the issue of surrender, based as it was almost entirely on the credibility of witnesses and scant documentary evidence, is entitled to "great weight on appeal" (George A. Fuller Co. v Kensington-Johnson Corp., 234 AD2d 265, 266 [1996]), and as it cannot be said that the court's conclusions "could not be reached under any fair interpretation of the evidence," they will not be disturbed (Thoreson v Penthouse Intl., 80 NY2d 490, 495 [1992]; see also Claridge Gardens v Menotti, 160 AD2d 544, [*3]
544-545 [1990]; Mazza v Mazza, 9 Misc 3d 127[A], 2005 NY Slip Op 51476[U] [App Term, 2d & 11th Jud Dists]).

In allowing tenant to belatedly interpose an oral answer at trial, approximately a month after the return date of the petition, the court inquired of tenant's counsel whether he sought to interpose any affirmative defenses. Tenant's counsel replied "no." However, tenant's counsel, although equivocal on the matter, several times insisted that tenant wanted to offer proof of a constructive eviction solely for the purpose of corroborating tenant's evidence that it surrendered the premises before the action commenced, apparently by evidencing a motive to vacate. In this regard, tenant's counsel expressly stated that he was not "claiming constructive eviction in the sense of an affirmative defense." In these circumstances, tenant's claim on appeal that it sought to interpose the affirmative defense of constructive eviction and that the court abused its discretion in precluding it from asserting such affirmative defense is without merit. The court, in any event, permitted the proof for the purpose asserted by counsel. In that respect, we find no error in the court's determination to allow into evidence only 12 of the 19 photographs offered by tenant to demonstrate the condition of the [*4]
premises at the commencement of the lease and at the time of its alleged surrender, tenant having failed to establish that the remaining seven photographs depicted relevant matter independent of the content of the admitted photographs.
Decision Date: January 09, 2006