Raffov.McIntosh

Appellate Term of the Supreme Court of New York, First DepartmentApr 12, 2004
2004 N.Y. Slip Op. 50323 (N.Y. Misc. 2004)

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570553/03.

Decided April 12, 2004.

Landlord appeals from a final judgment of the Civil Court, New York County, entered March 18, 2003 after a nonjury trial (Jean T. Schneider, J.) awarding possession and a money judgment of $25,242.60 to tenants in a holdover summary proceeding; from an order of the same court, dated June 24, 2003 (Jean T. Schneider, J.) denying landlord's motion to offset use and occupancy against the money judgment; and from a pretrial order dated October 15, 2002 (Ernest J. Cavallo, J.) granting summary judgment in favor of tenants on the issue of willfulness with respect to the counterclaim for rent overcharge.

Final judgment entered March 18, 2003 and order dated June 24, 2003 (Jean T. Schneider, J.) affirmed, with $25 costs.

Appeal from order dated October 15, 2002 (Ernest J. Cavallo, J.) dismissed, without costs, as subsumed on the appeal from the final judgment.

PRESENT: HON. LUCINDO SUAREZ, P.J., HON. WILLIAM P. McCOOE, HON. PHYLLIS GANGEL-JACOB, Justices.


Based upon Civil Court's credibility findings, to which we defer, landlord failed to establish by objective evidence the requisite good faith for recovery of tenants' stabilized apartment for the use and occupancy of her elderly parents (see, Nestor v. Britt, 213 AD2d 255). The parents presently occupy an apartment in the same building which, the record shows, is of comparable size to that of the tenants. Landlord's claim that a second bedroom in tenants' apartment is required to provide for a "live-in" caretaker for the parents was negated by evidence that a back room in the parents' own apartment — of the same or larger dimension — is equally suitable or adaptable for that purpose. Moreover, given the physical configuration of tenants' apartment, with its network of interior steps separating the various rooms, and the nature of the parents' disabilities, Civil Court's finding that it would be "incredible" to relocate them to tenants' space was not an unfair or unreasonable view of the evidence. Accordingly, no basis exists to disturb the judgment rendered below (see, Thoreson v. Penthouse International, Ltd., 80 NY2d 490, 495).

We have reviewed the pretrial order (Ernest J. Cavallo, J.) on the appeal from the final judgment (CPLR § 5501[a][1]), and affirm Civil Court's grant of summary judgment on the issue of willfulness in connection with tenants' counterclaim for rent overcharge. Landlord was on notice of the DHCR rent reduction order which, in pertinent part, provided that "no rent increase may be collected . . . until a Rent Restoration order has been issued". Landlord's mere statement that she was "never aware" that the order prohibited an increase in rent until services were restored was insufficient to rebut the presumption of willfulness, or to raise an issue of fact in that regard (see, Rent Stabilization Law of 1969 [Administrative Code of City of N.Y.] § 26-516[a]; Matter of Hargrove v. DHCR, 244 AD2d 241; Hollis Realty Co. v. Glover, 179 Misc 2d 522, 525 [App Term, 2nd Dept]).

This constitutes the decision and order of the court.