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Manchester Realty Associates v. Susan Gench

March 17, 2011

MANCHESTER REALTY ASSOCIATES,
RESPONDENT,
v.
SUSAN GENCH,
APPELLANT.



Appeal from a final judgment of the Civil Court of the City of New York, Queens County (Gilbert Badillo, J.), entered November 6, 2009.

Manchester Realty Assoc. v Gench

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 17, 2011

PRESENT: PESCE, P.J., WESTON and STEINHARDT, JJ

The final judgment, after a non-jury trial, awarded landlord possession and the principal sum of $5,636.64 in a nonpayment summary proceeding.

ORDERED that the final judgment is affirmed, without costs.

As a defense to this nonpayment summary proceeding, tenant alleged, in essence, that she was entitled to an abatement based upon a breach of the warranty of habitability due to excessive noise caused by her upstairs neighbor. After a non-jury trial, the Civil Court found that tenant had failed to establish her defense. We affirm.

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]). Furthermore, the determination of the 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 the credibility of the witnesses (see Vizzari v State of New York, 184 AD2d 564 [1992]; Kincade v Kincade, 178 AD2d 510, 511 [1991]).

Applying these principles here, we find that the Civil Court could properly conclude that tenant failed to demonstrate by a preponderance of the evidence that there was excessive noise coming from the apartment above tenant's. Accordingly, the final judgment is affirmed.

Pesce, P.J., Weston and Steinhardt, JJ., concur.

Decision Date: March ...


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