[*1]
P.S. Lofts LLC v Kyle
2015 NY Slip Op 50724(U) [47 Misc 3d 146(A)]
Decided on May 15, 2015
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This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on May 15, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Hunter, Jr., Ling-Cohan, J.
570295/15

P.S. Lofts LLC & 327 St Nicholas LLC., Petitioner-Landlord-Appellant,

against

Dennis Jerome Kyle, Respondent-Tenant-Respondent.


Landlord appeals from a final judgment of Civil Court of the City of New York, New York County (Jack Stoller, J.), entered on or about April 25, 2014, after a nonjury trial, in favor of tenant dismissing the petition in a holdover summary proceeding.

Per Curiam.

Final judgment (Jack Stoller, J.), entered on or about April 25, 2014, affirmed, with $25 costs.

On a nonjury trial, the decision of the fact-finding court should not be disturbed on appeal unless the court's conclusions could not have been reached under any fair interpretation of the evidence (see Thoreson v Penthouse International, Ltd., 80 NY2d 490, 495 [1992]). Applying that review standard here, we sustain the posttrial dismissal of this holdover proceeding, premised upon allegations that tenant made unauthorized alterations to his rent stabilized apartment. A fair interpretation of the evidence supports the finding that landlord failed to establish that the alleged kitchen alterations performed by tenant constitute a substantial violation. In this regard, the sole witness at trial, landlord's managing member, Jeffrey Pikus, was admittedly in tenant's apartment only "briefly"; and Pikus' terse testimony provided no details concerning the nature and extent of the alleged alterations performed by tenant other than the bald statement "new floor, new cabinets, new appliances." We agree with the trial court that this testimony was "bare and conclusory . . . [and] too vague" to prove a substantial violation of the "no alterations" clause in the parties' lease agreement (see generally Freehold Invs. v Richstone, 34 NY2d 612 [1974]; Mengoni v Passey, 254 AD2d 203 [1998]; Britton v Yazicioglu, 189 AD2d 734 [1993]).


In sustaining the trial court's determination, we note that the contents of the affidavit previously submitted by tenant in support of his summary judgment motion may not now be utilized by landlord to cure the deficiencies in its prima facie case, since that affidavit was neither offered nor admitted into evidence at trial (see Matter of Grange v Grange, 78 AD3d 1253, 1255 [2010]; Walker v City of New York, 46 AD3d 278, 282-283 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.


I concur I concur I concur


Decision Date: May 15, 2015