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Ralph Mercogliano v. Lorraine Munroe

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


February 16, 2011

RALPH MERCOGLIANO,
RESPONDENT,
v.
LORRAINE MUNROE, APPELLANT,
v.
KISHTON MUNROE, TENANT.

Appeal from an order of the City Court of New Rochelle, Westchester County (Gail B. Rice, J.), dated February 18, 2009.

Mercogliano v Munroe

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 This opinion is uncorrected and will not be published in the printed Official Reports. Decided on February 16, 2011

PRESENT: NICOLAI, P.J., MOLIA and LaCAVA, JJ

The order, after a hearing, denied a motion by tenant Lorraine Munroe to vacate so much of a final judgment entered April 2, 1996 as was against her.

ORDERED that the order is affirmed, without costs.

This nonpayment summary proceeding was commenced in March 1996. On April 2, 1996, the City Court entered a final judgment, marked "on consent," awarding landlord the sum of $3,290 as against both named tenants. Eleven years later, tenant Lorraine Munroe (appellant) moved to vacate the final judgment as against her, asserting that she was not present in court on April 2, 1996 and had not consented to the entry of the final judgment. Her motion was denied, and appellant appealed to this court. On appeal, this court, noting that the consent final judgment did not make clear which tenant had appeared on April 2, 1996, reversed the order and remitted the matter to the City Court for a determination de novo of the motion, following a hearing, to ascertain whether appellant had been present (Mercogliano v Munroe, 22 Misc 3d 127[A], 2009 NY Slip Op 50032[U] [2009]).

At the hearing held following remittitur, appellant denied that she had been present on April 2, 1996. Appellant also testified that the other named respondent, Kishton Munroe, had not appeared on April 2, 1996, as he had moved out of the premises months earlier. Landlord testified that it was appellant herself who had appeared and who had negotiated the settlement reached before the court. The City Court noted that the court's records indicated that someone had appeared on behalf of tenants and negotiated a settlement.

After the hearing, the City Court found that appellant had failed to show that she was not present on April 2, 1996 or that she had not consented to the entry of the final judgment, and denied her motion to vacate the final judgment insofar as it was against her.

The decision of a 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 the trier of fact as to issues of credibility is given substantial deference as the court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess the credibility of the witnesses (see Vizzari v State of New York, 184 AD2d 564 [1992]; Kincade v Kincade, 178 AD2d 510, 511 [1991]). As the record amply supports the City Court's conclusions, the order denying appellant's motion is affirmed.

Nicolai, P.J., Molia and LaCava, JJ., concur. Decision Date: February 16, 2011

20110216

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