Tibta v 156 E. 21, LLC

Supreme Court, Appellate Term, Second Department, 2d, 11th And 13th Judicial Districts

Decided on March 20, 2026

2024-1373 K C

Present: : Wavny Toussaint, P.J., ChereÉ A. Buggs, Joanne D. QuiÑOnes, JJ

John T. Petrusky, P.C. (John T. Petrusky of counsel), for appellants. Himmelstein, McConnell, Gribben & Joseph, LLP (Milad Momeni of counsel), for respondent.

Appeal from a decision of the Civil Court of the City of New York, Kings County (Karen May Bacdayan, J.), dated October 30, 2024, and from a final judgment of that court entered the same date. The final judgment, entered pursuant to the decision, after a nonjury trial, awarded petitioner possession in an illegal lockout summary proceeding.

ORDERED that so much of the appeal as is from the decision is dismissed, as no appeal lies from a decision (see CCA 1702); and it is further,

ORDERED that the final judgment is affirmed, without costs.

After a nonjury trial of this illegal lockout proceeding (RPAPL 713 [10]), in a decision dated October 30, 2024, the Civil Court (Karen May Bacdayan, J.) found that petitioner was, contrary to landlord's contention, at the very least a constructive tenant of the premises (see RPAPL 713 [10]).

RPAPL 713 (10) provides that a special proceeding may be maintained where "[t]he person in possession has entered the property or remains in possession by force or unlawful [*2]means . . . and the petitioner was peaceably in actual possession at the time of the forcible or unlawful entry or in constructive possession at the time of the forcible or unlawful detainer." The determination of whether petitioner was in possession of the premises, either actually or constructively, is, in this case, a factual one. As such, the decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]). The determination of a trier of fact as to issues of credibility is given substantial deference, as the 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 Vizzari v State of New York, 184 AD2d 564 [1992]; Kincade v Kincade, 178 AD2d 510, 511 [1991]).

Here, the trial court's determination that petitioner maintained at least constructive possession of the apartment is supported by the evidence. Leases and DHCR records list him as the tenant of record for the past several years, including a 2024 lease with a two-year term, and landlord also sent him a rent demand for the subject apartment as recently as 2024.

Accordingly, the final judgment is affirmed.

TOUSSAINT, P.J., BUGGS and QUIÑONES, JJ., concur.

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: March 20, 2026