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Martinez v. Umane

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


August 19, 2009

IN RE ISRAEL MARTINEZ, ETC., PETITIONER-APPELLANT, V FREDERIC M. UMANE, ET AL., RESPONDENTS, GRISELA LAJARA, ETC., RESPONDENT-RESPONDENT.
IN RE GRISELA LAJARA, ETC., PETITIONER,
v.
ISRAEL MARTINEZ, ETC., ET AL., RESPONDENTS.

Judgment, Supreme Court, Bronx County (Robert G. Seewald, J.), entered August 14, 2009, affirmed for the reasons stated by Seewald, J., without costs or disbursements. All concur except Freedman and Richter, JJ. who dissent in a memorandum by Freedman, J. as follows:

The opinion of the court was delivered by: Freedman, J. (dissenting).

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

The Following Order Was Entered And Filed On August 19, And Corrected Thereafter As Follows:

Gonzalez, P.J., DeGrasse, Freedman, Richter, Abdus-Salaam, JJ.

260454/09 & 260441/09

I respectfully dissent and would reverse the decision of the court below. The record, as set forth in that court's decision, raises serious questions concerning the objector's standing. Other than a 16-year-old buff card, there was no evidence that objecting petitioner Grisela Lajara lived where she claimed she lived, and there was substantial evidence to the contrary. Her failure to respond to any subpoena issued by respondent, a letter addressed to her that was returned by the post office, the absence of her name on the apartment lease renewal or the income certification form, which is part of the record, and the testimony of the managing agent and of the Executive Director of the sponsor of the building presented prima facie evidence of non-residency, to which no rebuttal evidence was adduced.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090819

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