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Jackson Surrey 35th, LLC, Respondent v. Yuliya Litvinova

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


April 5, 2011

JACKSON SURREY 35TH, LLC, RESPONDENT,
v.
YULIYA LITVINOVA, APPELLANT,
-AND- " JOHN DOE" AND "JANE DOE", UNDERTENANTS.

Appeal from a final judgment of the Civil Court of the City of New York, Queens County (Gilbert Badillo, J.), entered October 14, 2008.

Jackson Surrey 35th, LLC v Litvinova

Decided on April 5, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.

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

The final judgment, after a non-jury trial, awarded possession to landlord in a licensee summary proceeding.

ORDERED that the final judgment is reversed, without costs, and final judgment is directed to be entered dismissing the petition.

A fair interpretation of the evidence in this licensee summary proceeding (RPAPL 713 [7]) supports a finding that occupant met her affirmative obligation of establishing succession rights to the rent-stabilized apartment as a nontraditional family member of the deceased tenant. Viewing the totality of the relationship between occupant and the tenant of record, we find that the evidence adduced at trial established that the requisite emotional and financial commitment and interdependence existed (see Rent Stabilization Code [9 NYCRR] § 2520.6 [o] [2]; RHM Estates v Hampshire, 18 AD3d 326 [2005]; AFE Realty Corp. v Diamond, 7 Misc 3d 136[A], 2005 NY Slip Op 50783[U] [App Term, 2d & 11th Jud Dists 2005]; Roberts Ave. Assoc. v Sullivan, 2003 NY Slip Op 51091[U] [App Term, 1st Dept 2003]). Accordingly, the final judgment is reversed and final judgment is directed to be entered dismissing the petition.

Pesce, P.J., and Rios, J., concur.

Weston, J., dissents in a separate memorandum.

Weston, J., dissents and votes to affirm the final judgment in the following memorandum:

It is well established that, in a non-jury trial, "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" (Watts v State of New York, 25 AD3d 324, 324 [2006], quoting Thoreson v Penthouse Intl., 179 AD2d 29, 31 [1992], affd 80 NY2d 490 [1992]; Claridge Gardens v Menotti, 160 AD2d 544 [1990]).

The issue of whether a nontraditional family relationship existed between occupant and the deceased tenant of record was a close one, which turned on the credibility of occupant and her sister. On the one hand, the trial court made a finding that there was a relationship with an intent to marry, but it also found that the testimony was overly biased, making credibility the deciding factor. Here, occupant's entire claim to establish succession rights rested upon either her testimony or the testimony of her sister. The only evidence introduced to support the longevity of the relationship, that the tenant of record engaged in family-type activities with occupant, or that they held themselves out publicly as family members came from occupant or her sister. Moreover, while occupant claimed that, in an effort to avoid detection, the tenant of record had given her money to deposit into her accounts in order to pay household bills, the court found that this testimony was insufficient to demonstrate the sharing of household and other necessary expenses, or the intermingling of finances. After considering all of the relevant factors, the totality of the evidence did not establish a domestic partnership.

This court should not substitute its opinion in place of the trial judge, who had ample opportunity to observe and evaluate the testimony, as well as the demeanor of the witnesses and make an assessment of their credibility (see e.g. Vizzari v State of New York, 184 AD2d 564 [1992]; Kincade v Kincade, 178 AD2d 510 [1991]). Indeed, substantial deference as to issues of credibility should be given to the trier of fact (see Fernandez v M & V Group, Inc., 29 Misc 3d 136[A], 2010 NY Slip Op 52014[U] [App Term, 2d, 11th & 13th Jud Dists 2010). In this proceeding, the Civil Court's determination that occupant failed to sustain the burden required to support a finding that a domestic partnership existed is amply supported by the record and should not be disturbed on appeal. Accordingly, I vote to affirm the final judgment.

Decision Date: April 05, 2011

20110405

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