Appeal from a decision of the Civil Court of the City of New York, Kings County (Marcia J. Sikowitz, J.), dated February 24, 2005, deemed an appeal from the final judgment entered pursuant thereto, on February 28, 2005 (see CPLR 5520 [c]). The final judgment, after a nonjury trial, awarded possession to landlord in a holdover summary proceeding.

Final judgment affirmed without costs.

In this holdover proceeding to recover possession based on tenants' violation of a lease term, in a rent-stabilized tenancy, which obligated tenants to provide landlord reasonable access to perform repairs (see Rent Stabilization Code [9 NYCRR] § 2524.3 [a], [e]), tenants did not contend that landlord failed to properly assert its claim below or, even if landlord's evidence is credited, that landlord failed to make a prima facie showing that they violated a substantial obligation of their tenancy. Rather, they challenge the court's credibility determinations and offer considerable dehors the record assertions of fact and exhibits, in effect, to refute those determinations. However, it is axiomatic that "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" (Universal Leasing Servs. v Flushing Hae Kwan Rest., 169 AD2d 829, 830 [1991]) and, "in the context of a nonjury trial, the trial court's credibility-based findings of fact should be affirmed [*2]unless incompatible with any fair interpretation of the evidence" (Horsford v Bacott, 32 AD3d 310, 312 [2006]; see Thoreson v Penthouse Intl., 80 NY2d 490, 495 [1992], citing Claridge Gardens v Menotti, 160 AD2d 544, 544-545 [1990]; e.g. Cohen v Arco-Wentworth Management, 14 Misc 3d 129[A], 2006 NY Slip Op 52521[U] [App Term, 2d & 11th Jud Dists]; Liddell v Ali, 12 Misc 3d 133[A], 2006 NY Slip Op 51182[U] [App Term, 2d & 11th Jud Dists]). As there is support in the record for the court's credibility determinations, they will not be disturbed.

Landlord's proof documented its efforts, for several months, to obtain access to repair a severe water condition, affecting tenants and at least one other apartment in which resided a disabled elderly person, on dialysis, whose rent subsidy was in danger of termination owing to the deteriorated conditions therein. The evidence established that tenants received adequate notice of the necessity of repairs, the extent of the repairs required, and the severity of the conditions sought to be ameliorated. The evidence documented tenants' dilatory and willful tactics to obstruct landlord's efforts after being fully informed of the damage to the premises of the elderly tenant below, and adequately supported the court's determination to grant landlord possession.

Tenants note the disadvantages of proceeding pro se, dealing with the technical aspects of trial, and claim to have been unsettled by the court's rulings as to the propriety of various aspects of their testimony and their attempts to cross-examine landlord's witnesses. However, "it is well settled that a litigant who appears pro se at trial does so at his [or her] own peril and acquires no greater rights than any other litigant" (Tanenbaum Assoc., L.L.P. v Yudenfreund, 13 Misc 3d 138[A], 2006 NY Slip Op 52223[U] [App Term, 2d & 11th Jud Dists]; see Roundtree v Singh, 143 AD2d 995 [1998]) and, in any event, the record does not reveal that the court below failed to apply
the law accurately and impartially, or that it improvidently exercised its discretion in its ruling with respect to the conduct of the proceedings and the admission of evidence.

Tenants suggest that the summary proceeding amounted to landlord's retaliation for their attempt to form a tenants' association (Real Property Law § 223-b [1] [c]). However, not only did tenants fail to interject the issue below, but the claim is unavailable, as Real Property Law § 223-b (5) (c) specifically bars any presumption of retaliation where the action or proceeding "is based on the violation by the tenant of the terms and conditions of the lease or rental agreement . . ." (e.g. United Veterans Beacon House, Inc. v St. James, 1 Misc 3d 130[A], 2003 NY Slip Op 51592[U] [App Term, 9th & 10th Jud Dists]).

Tenants' additional claims on appeal concern landlord's alleged failure to make proper repairs, that landlord used the necessity of access as a pretext to harass the appellants and to force them from the premises, that a child's illness established a proper basis to deny entry, and that the evidence failed to demonstrate that tenants unreasonably prevented access throughout the period in question. These claims, considered collectively, are either without support in the record or merely take issue with the quantity and quality of the proof below which, as noted, suffices to support the court's determination that tenants unreasonably denied landlord's properly-submitted requests to gain access to make substantial and necessary repairs.

Pesce, P.J., Golia and Belen, JJ., concur. [*3]
Decision Date: February 26, 2007