Appeal from a final judgment of the District Court of Suffolk County, Sixth District (C. Steven Hackeling, J.), entered December 13, 2005. The final judgment, after a nonjury trial, dismissed landlord's petition and, without prejudice, tenants' counterclaim in a nonpayment summary proceeding.

Final judgment reversed without costs, petition and counterclaim reinstated, and new trial ordered before a different judge.

In this nonpayment proceeding, landlord seeks to recover rent and added rent in the form of real estate taxes allegedly due, in the total sum of $17,200. Tenants asserted a defense of payment and counterclaimed for the return of excess rents paid. At trial, tenants offered evidence in the form of rent receipts and a receipt for a disputed cash payment to landlord in the sum of $65,000, allegedly made on December 2, 1999, and testified as to the circumstances of the lump sum payment. Landlord denied receiving $65,000 in cash. While he admitted that on the date in question, he had signed and partially filled out a receipt, he asserted that he did not write in "$65,000."

Upon weighing the relative probative force of the conflicting testimony (see Kaiser v Fishman, 187 AD2d 623, 626 [1992]), we find insufficient persuasive proof in the record with respect to tenants' claim regarding the alleged $65,000 cash payment. However, since further proof may be available, there should be a new trial before a different judge.

McCabe, J.P., and Tanenbaum, J., concur.

Lippman, J., taking no part.
Decision Date: July 12, 2007