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Res Land, Inc., Respondent v. Shs Baisley

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


October 11, 2011

RES LAND, INC., RESPONDENT,
v.
SHS BAISLEY, LLC, APPELLANT.

Appeal from a decision of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.; op 27 Misc 3d 1229[A], 2010 NY Slip Op 50963[U]), dated June 1, 2010, deemed from a final judgment of the same court entered the same day.

Res Land, Inc. v SHS Baisley, LLC

Decided on October 11, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 STEINHARDT, JJ

The final judgment, after a non-jury trial, awarded landlord possession and the principal sum of $92,631.45.

ORDERED that the final judgment is affirmed, without costs.

In this commercial nonpayment proceeding, the Civil Court, after a non-jury trial, awarded landlord possession and the principal sum of $92,631.45. On appeal, tenant challenges service of the three-day rent demand and notice of petition and petition, and argues, among other things, that it was partially actually or partially constructively evicted and that landlord failed to prove that the real estate taxes claimed were due and owing. 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]).

Tenant's argument that service was defective because the papers were not left on the premises itself is without merit. "[I]f a process server is not permitted to proceed to the actual [premises], the outer bounds of the [premises] must be deemed to extend to the location at which the process server's progress is arrested" (F. I. duPont, Glore Forgan & Co. v Chen, 41 NY2d 794, 797 [1977]; see also Duffy v St. Vincent's Hosp., 198 AD2d 31 [1993]; Centre Plaza, LLC v Chin Young Co., NYLJ, Sept. 20, 2010 [Civ Ct, NY County]). Here, the Civil Court specifically credited the process server's testimony that he had made a good faith effort to reach the actual premises, but had been unable to do so, and that he had to leave the papers on an outer fence. As service was made where the process server's progress was blocked, service was effectively made on the premises and, thus, there is no merit to tenant's contention that service failed to satisfy RPAPL 735.

The Civil Court also correctly found that tenant had not established a defense of partial eviction. Tenant based its defense upon the fact that there were cars parked on the common area parking lot and on an easement providing access to the leased premises. A tenant can demonstrate "partial actual eviction by submitting evidence that it had been effectively ousted from certain parking areas which it was entitled to use under the lease" (Whaling Willie's Roadhouse Grill, Inc. v Sea Gulls Partners, Inc., 17 AD3d 453, 454 [2005]; see also Appliance Giant, Inc. v Columbia 90 Assoc., LLC, 8 AD3d 932 [2004]). However, tenant does not dispute that the lease here only gave it non-exclusive use of the parking lot, and that there were no designated spaces for tenant of which it was deprived (cf. Arbern Realty Co. v Clay Craft Planters Co., 188 Misc 2d 314 [App Term, 9th & 10th Jud Dists 2001]). In any event, based upon all of the evidence at trial, the Civil Court found that there was ample parking available. Furthermore, the Civil Court also concluded, based upon the evidence, that there was no substantial or prolonged blockage of access to the premises. As the Civil Court's conclusion that there was no partial eviction is supported by the evidence, it will not be disturbed on appeal.

Finally, the Civil Court properly found that both landlord and tenant had accepted the method employed by landlord for computing real estate taxes, and that tenant had failed to put forth any evidence that the apportionment was incorrect.

Tenant's remaining arguments lack merit.

Accordingly, the final judgment is affirmed.

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

Decision Date: October 11, 2011

20111011

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