SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
April 5, 2011
150-15 79TH AVENUE OWNERS CORP.,
Appeal from a final judgment of the Civil Court of the City of New York, Queens County (Gilbert Badillo, J.), entered November 6, 2009.
150-15 79th Ave. Owners Corp. v James
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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 5, 2011
PRESENT: WESTON, J.P., GOLIA and RIOS, JJ
The final judgment, after a non-jury trial, awarded landlord possession and the principal sum of $12,182.34 in a nonpayment summary proceeding.
ORDERED that the final judgment is affirmed, without costs.
In this nonpayment proceeding, tenant claims that she made additional rent payments to landlord, which landlord did not credit to her, and that landlord breached the warranty of habitability, thereby entitling her to an abatement. Prior to trial, tenant entered into a stipulation in which she agreed to provide proof at trial that it was landlord who was the payee that had negotiated the checks which allegedly represented the additional payments. After a non-jury trial, the Civil Court awarded landlord possession and the principal sum of $12,182.34. Upon a review of the record, it is our opinion that the Civil Court properly found that tenant had failed to prove that the alleged additional payments had been made to landlord as the named payee and that landlord had negotiated the payments. Tenant failed to establish who the payee was on two disputed checks or who, if anyone, had negotiated the two checks.
The Civil Court also properly determined the warranty of habitability issue in favor of landlord. It found that although landlord had attempted to gain access to tenant's apartment to make repairs, tenant had denied landlord access and, thus, tenant was not entitled to an abatement (see Callender v Titus, 4 Misc 3d 126[A], 2004 NY Slip Op 50608[U] [App Term, 2d & 11th Jud Dists 2004]; see also West 122nd St. Assoc. v Gibson, 5 Misc 3d 137[A], 2004 NY Slip Op 51578[U] [App Term, 1st Dept 2004]; Marz Realty Inc. v Reichman, NYLJ, Jan. 30, 2002 [App Term, 2d & 11th Jud Dists]). As the record supports the trial court's conclusions, the final judgment is affirmed.
Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: April 05, 2011
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