| Caring Communities Assoc. HDFC v Boffa |
| 2016 NY Slip Op 50040(U) [50 Misc 3d 134(A)] |
| Decided on January 8, 2016 |
| Appellate Term, Second 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal from an order of the Civil Court of the City of New York, Kings County (Bruce E. Scheckowitz, J.), dated October 19, 2012. The order denied landlord's motion for leave to execute a warrant of eviction in a holdover summary proceeding.
ORDERED that the order is affirmed, without costs.
In this holdover proceeding based on a claim that tenant had engaged in objectionable conduct, the parties stipulated, in April 2011, to award landlord a final judgment of possession and a warrant of eviction, with the warrant stayed for an 18-month probationary period, during which, should objectionable conduct recur, landlord would be entitled to execute the warrant. In September 2012, landlord moved for leave to execute the warrant, alleging that tenant had violated the terms of the stipulation by engaging in "disruptive, destructive, dangerous and/or illegal behavior" in violation of the terms of the parties' written lease and the rules and regulations of the premises, in attempting to break into a basement room, which was reserved for landlord's employees. Following a hearing, the Civil Court denied the motion.
On appeal, landlord argues that the Civil Court's factual findings cannot be supported by any fair interpretation of the evidence, and that the order denying the motion should be reversed and landlord permitted to evict tenant. In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824, 826 [2008]). Here, the court apparently considered tenant's version of the facts sufficiently credible to rebut landlord's prima facie case, and it cannot be said that the court's resolution of the issue was so inconsistent with a fair interpretation of the evidence as to warrant reversal (see 409-411 Sixth St., LLC v Mogi, 22 NY3d 875 [2013]).
Accordingly, the order is affirmed.
Pesce, P.J., Weston and Elliot, JJ., concur.