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Chun Wah Lee and Fung Kam Lai v. Insook Han

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS New York Supreme and/or Appellate Courts


March 29, 2013

CHUN WAH LEE AND FUNG KAM LAI,
RESPONDENTS,
CHUN IL HAN AND JOHN DOE, OCCUPANTS, -AND-
v.
INSOOK HAN,
APPELLANT.

Appeal from a final judgment of the Civil Court of the City of New York, Queens County (Gilbert Badillo, J.), entered May 25, 2011.

Chun Wah Lee v Insook Han

Decided on March 29, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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

The final judgment, after a non-jury trial, awarded possession to petitioners as against occupant Insook Han in a licensee summary proceeding.

ORDERED that the final judgment is affirmed, without costs.

This RPAPL 713 (7) proceeding was commenced against Chun Il Han, John Doe, and Jane Doe. On May 11, 2011, Mr. Han signed a stipulation of settlement. On that same date, his daughter, Insook Han, appeared as Jane Doe, the caption was amended to reflect her appearance, and a trial was commenced against her as the respondent. At the non-jury trial, petitioners demonstrated that they had title to the subject property by virtue of a deed, that they did not have a landlord-tenant relationship with any of the occupants, and that they had properly served a 10-day notice to quit. After petitioners had presented their case, Ms. Han claimed that in order for her to present her defense--that her father had been a co-owner of the subject property along with his ex-wife and had not approved his ex-wife's sale of the property to petitioners--she needed petitioners to call the seller as a witness so that Ms. Han could cross-examine her regarding the sale. The court denied Ms. Han's application, in effect, for an adjournment and explained that petitioners were not required to call the seller as a witness. Ms. Han then testified that her father had been contesting ownership of the subject property before the sale had occurred and that the sale was illegal. The court found that Ms. Han "was unable to assert a valid legal defense to defeat this . . . proceeding," and a final judgment of possession was entered against Ms. Han and in favor of petitioners.

Even though title cannot be determined as an affirmative claim in the context of a summary proceeding, an allegation that the petitioner is not the owner of the subject property may properly be interposed as a defense to the proceeding (see Nissequogue Boat Club v State of New York, 14 AD3d 542 [2005]; Chopra v Prusik, 9 Misc 3d 42 [App Term, 2d & 11th Jud Dists 2005]). Thus, Ms. Han was entitled to interpose this defense (see Decaudin v Velazquez, 15 Misc 3d 45 [App Term, 9th & 10th Jud Dists 2007]). However, it seems that her trial strategy rested entirely upon petitioners calling the seller as a witness so that she could cross-examine her. Indeed, her main argument on appeal is that the trial was improper because petitioners did not bring the seller as a witness.

An application for an adjournment is addressed to the sound discretion of the trial court (see Nieves v Tomonska, 306 AD2d 332 [2003]; see also Samuel v F.E.G.S. Russian Ctr., 11 Misc 3d 130[A], 2006 NY Slip Op 50308[U] [App Term, 2d & 11th Jud Dists 2006]), and the court's determination will not be disturbed absent an improvident exercise of that discretion (see Wolosin v Campo, 256 AD2d 332 [1998]; Klein v Klein, 6 Misc 3d 132[A], 2005 NY Slip Op 50106[U] [App Term, 2d & 11th Jud Dists 2005]). Here, Ms. Han sought an adjournment only because she wanted petitioners to call another witness. This is not an appropriate basis for an adjournment, as a party cannot be compelled to call a witness. While a trial court may, in appropriate circumstances, advise a pro se litigant that he may seek an adjournment to call his own witnesses, here, the record reflects that Ms. Han had previously been told that she could subpoena the witness herself and she failed to do so. Accordingly, the court did not improvidently exercise its discretion in denying Ms. Han's application for an adjournment.

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]). Here, there is no basis in the record to disturb the Civil Court's determination.

Accordingly, the final judgment is affirmed.

Pesce, P.J., Weston and Solomon, JJ., concur. Decision Date: March 29, 2013

20130329

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