Opinion
570907/02.
Decided August 20, 2004.
Tenant appeals from a final judgment of the Civil Court, New York County, entered July 19, 2002 after a nonjury trial (Donna G. Recant, J.) awarding possession to landlord in a holdover summary proceeding, and from an order of the same court dated August 29, 2002 (Donna G. Recant, J.) denying tenant's motion to set aside the judgment.
Final judgment entered July 19, 2002 (Donna G. Recant, J.) reversed and new trial ordered in accordance with this decision, with $30 costs to abide the event.
Order dated August 29, 2002 (Donna G. Recant, J.) affirmed, without costs.
PRESENT: HON. WILLIAM J. DAVIS, J.P., HON. PHYLLIS GANGEL-JACOB, HON. MARTIN SCHOENFELD, Justices.
Tenant failed to establish that the May 1996 commercial lease was a "forged and fraudulent" document, as his own self-serving testimony in this regard was insufficient, standing alone, to support such a finding (see Lum v. Antonelli, 102 AD2d 258). The motion to re-open the trial for the receipt of expert testimony on this issue was properly denied, since tenant failed to offer a justifiable excuse for not introducing this evidence in a timely fashion (see Grassel v. Albany Medical Center Hospital, 223 AD2d 803).
However, with respect to the proffered January 2001 lease, which would not expire until December 31, 2010, we are not satisfied that its exclusion from evidence, on "foundation" or other grounds, was correct. It appears that different copies of the lease were presented at trial, but it is not disputed that landlord drafted and signed it (including handwritten entries). Moreover, there is evidence that the lease was signed by tenant at the office of landlord's principal, and that landlord consented to an assignment of a lease "which expires on December 31, 2010". Given the confusing state of the record, we remand for a new trial on the authenticity of the January 2001 lease, which, if credited, would defeat the holdover petition. To the extent landlord argues that the lease was merely a "draft", no such limiting language appears on the face of the document.
In view of our disposition, it is unnecessary to reach the bona fides of the alleged September 1996 lease which, in any event, would have expired on August 31, 2001.
This constitutes the decision and order of the court.