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Rupert Moore v. Crystal G. Parks


May 12, 2011


Appeal from a judgment of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered January 4, 2010. The judgment, after a non-jury trial, dismissed the action.

Moore v Parks

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 12, 2011


ORDERED that the judgment is affirmed, without costs.

Plaintiff, defendant's former landlord, brought this small claims action to recover rent which allegedly remained unpaid after defendant had vacated her rental unit. Plaintiff testified that, pursuant to an agreement between the parties, defendant was a tenant in the premises from January 1, 2007 through December 31, 2007, that plaintiff had thereafter brought a holdover summary proceeding to terminate defendant's tenancy, and that, in settlement of that proceeding, on April 8, 2009, the parties had entered into a stipulation, pursuant to which defendant had agreed to vacate her rental unit on or before July 7, 2009. The stipulation, which was introduced into evidence, included the statement, "Rent to be paid for May 1 and June 1, 2009." The parties agreed that defendant had paid rent through April 2009. However, at trial, plaintiff testified that defendant had moved out on June 10, 2009 and owed rent for the months of May and June, whereas defendant claimed to have moved out "on May 1, 2009," and asserted that no further rent was owed. The Civil Court interpreted the April 8, 2009 stipulation between the parties to mean that defendant would have been required to pay rent to plaintiff only if she continued in possession of the demised premises during May and June. Since the court found that defendant had vacated the premises "by May 1, 2009," it concluded that defendant did not owe plaintiff any money and dismissed the action. The determination of a fact-finding court should not be disturbed on 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]). This standard applies with greater force to judgments rendered in the Small Claims Part of the court (see Williams v Roper, 269 AD2d 125, 126 [2000]). "A trial court's resolution of questions of credibility is particularly within its domain and should not be disturbed on appeal if supported by the record" (Vizzari v State of New York, 184 AD2d 564, 564 [1992]; see also Kincade v Kincade, 178 AD2d 510, 511 [1991]). Since plaintiff concedes in his appellate brief that if defendant vacated the premises "on May 1, 2009," he would not be entitled to recover from defendant, and there is support in the record for a finding that defendant vacated on May 1, 2009, we do not upset the Civil Court's determination that defendant did not owe any money to plaintiff.

To the extent that plaintiff argues on appeal that defendant failed to establish by documentary evidence that she had vacated the rental premises on May 1, 2009, we note that defendant had no obligation to produce such evidence, as plaintiff bore the burden of establishing his case by a preponderance of the evidence (Naclerio v Adjunct Faculty Assn., 1 Misc 3d 135[A], 2003 NY Slip Op 51644[U] [App Term, 9th & 10th Jud Dists 2003], citing Ellis v Collegetown Plaza, 301 AD2d 758 [2003]).

We do not consider those items annexed to plaintiff's brief which are dehors the record (see Chimarios v Duhl, 152 AD2d 508 [1989]), or those contentions which plaintiff has made for the first time on appeal.

Accordingly, the judgment is affirmed.

Weston, J.P., Golia and Rios, JJ., concur.

Decision Date: May 12, 2011


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