Opinion
570102/21
10-01-2021
299 Associates, L.P., Petitioner-Landlord-Respondent, v. Alexander Dissel Francis Mertens as Administrator of the Estate of Alexander Mertens, a/k/a Alexander Dissel Mertens, Jr., a/k/a Alex Mertens, Deceased, Respondent-Tenant, and John Mertens, Respondent-Occupant-Appellant, and "John and/or Jane Does," Respondents-Occupants.
Unpublished Opinion
Respondent John Mertens appeals from (1) a "decision and order" of the Civil Court of the City of New York, New York County (Timmie Erin Elsner, J.), entered on or about April 23, 2020, and (2) a final judgment and amended final judgment (same court and Judge), each entered March 19, 2021, after a nonjury trial, awarding possession to petitioner in a holdover summary proceeding.
PRESENT: Edmead, P.J., Brigantti, Hagler JJ.
PER CURIAM.
Amended final judgment (Timmie Erin Elsner, J.), entered March 19, 2021, affirmed, with $25 costs. Appeals from "decision and order" (Timmie Erin Elsner, J.), entered on or about April 23, 2020, and final judgment (Timmie Erin Elsner, J.), entered March 19, 2021, dismissed, without costs, as subsumed in and superseded by, respectively, the appeal from the amended final judgment.
We agree with the trial court that respondent John Mertens, the son of the rent stabilized tenant, failed to meet his affirmative obligation to establish succession rights to the subject apartment (see Rent Stabilization Code [9 NYCRR] § 2523.5[b][1]; 318 E. 93 v Ward, 276 A.D.2d 277 [2000]). Our review of the record shows no reason to disturb the fact and credibility determinations of the trial Judge, who was in the best position to assess the value of the witnesses' testimony (see Claridge Gardens v Menotti, 160 A.D.2d 544, 544-545 [1990]). While the absence of documentary evidence is not fatal to respondent's succession claim (see 300 E. 34th St. Co. v Habeeb, 248 A.D.2d 50, 55 [1997]), the testimony of respondent, which the trial court found to "lack[] credibility," was insufficient to overcome the complete paucity of documentary evidence connecting respondent to the apartment for actual living purposes for the two years prior to tenant's death (see K & L Chan Realty Inc. v Lee, 67 Misc.3d 130 [A], 2020 NY Slip Op 50415[U] [App Term, 1st Dept 2020]). Tenant's efforts to "explain away" some of the facts and circumstances "merely raise[d] questions of fact and credibility for the trial court" (409-411 Sixth St. LLC v Mogi, 112 A.D.3d 558, 559 [2013]).