[*1]
| Island Professional Ctr. v Ansanelli |
| 2008 NY Slip Op 51343(U) [20 Misc 3d 1114(A)] [20 Misc 3d
1114(A)] |
| Decided on July 2, 2008 |
| Nassau Dist Ct |
| Fairgrieve, J. |
| 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| This opinion is uncorrected and will not be
published in the printed Official Reports. |
Nassau Dist Ct
Island Professional
Center, Petitioner(s)
against
Vincent W. Ansanelli, Jr. M.D., Respondent(s)
|
2172/08
REPRESENTATION:
Lustig and Hermer, LLP, Attorney for Petitioner, 2100 Deer Park Avenue, Deer
Park, New York 11729, 631-667-0011; Vincent W. Ansanelli, Jr., M.D., Respondent Pro Se, 100
Manetto Hill Road, Plainview, New York 11803.
Scott Fairgrieve, J.
DECISION AFTER TRIAL
This nonpayment
summary proceeding began with filing of the Notice of Petition and Petition on April 23, 2008,
in which Petitioner sought $23,978 in unpaid rent for the months of December 2007 through
April 2008, plus attorney fees and late charges. The Petition was later amended to reflect some
subsequent partial payments, as well as added rent for May and June 2008. The Petitioner now
seeks $15,934.
At trial, Petitioner introduced evidence to show that Petitioner Island Professional
Center and Respondent Dr. Ansanelli entered into a lease of the subject premises on March 24,
1997. On February 18, 2008 the parties signed a lease renewal agreement, wherein the rent was
increased to $4,160 a month.
Petitioner's evidence established a landlord-tenant relationship between the parties;
however, Petitioner failed to prove that the rent was not paid by Respondent. Petitioner neglected
to introduce any evidence that rent was owed other than the testimony of its President James
Nazzaro. Petitioner's testimony alone, without documentation to support it, is hearsay and
therefore inadmissible. See Anzalone v. State farm Mutual Insurance co., 92 AD2d 238
at 240, 459 NYS2d 850 at 853 (NY App. Div. 2d Dep't 1983).
Failure to produce a record of payment history is a violation of the best evidence
rule, which "requires the production of the original writing or that its absence be satisfactorily
accounted for." Id. (citing Mahaney v. Carr, 175 NY 454, 67 N.E. 903 (1903);
Butler v. Mail & Express Publishing Co., 171 NY 208, 63 N.E. 951 (1902)). See
also Richardson's Evidence (10 ed. [*2]Prince)
§568; National States Electric Corp. V. LFO Construction Corp., 203 AD2d 49, 609
NYS2d 900 (1994) (citing Sachs v. Fumex Sanitation, 75 AD2d 595, 426 NYS2d 817
(1980); Public Operating Corp. v. Weingart, 257 App.Div. 379, 13 NYS2d 182 (1939)).
Furthermore, copies or computer printouts of the original business records would
have been admissible, but still no records were offered. Rather, at trial, Petitioner attempted to
utilize a copy of the Petition itself. When the Court asked Petitioner's attorney if she or the
Petitioner had the business records of the corporation with them, Petitioner's attorney responded
"No, we don't." Petitioner's failure to produce his business records "draws an unfavorable
inference against Petitioner." Amerifirst Mortgage Corp. v. Tracy Green and Aida
Claudio, 7 Misc 3d 1028(A), 801 NYS2d 229 (2005).
CONCLUSION
Because the
business records indicating the rent owed were not produced, Petitioner failed to sustain its
burden of proof. The instant summary proceeding is therefore dismissed, with prejudice.So Ordered:
/s/
DISTRICT COURT JUDGE
Dated: July 2, 2008
CC:
Susan J. Hermer, Esq.
Lustig and Hermer, L.L.P.
2100 Deer Park Avenue
Deer Park, NY 11729
Attorney for Petitioner
Vincent W. Ansanelli, Jr., M.D.
100 Manetto Hill Road
Plainview, NY 11803
Respondent Pro Se
SF/kgv