Opinion
570258/05.
Decided December 14, 2005.
Landlord appeals from a final judgment of the Civil Court, New York County (Anthony J. Fiorella, Jr., J.), enter on or about April 26, 2004, which, after a nonjury trial, dismissed the petition in a holdover summary proceeding.
Final judgment (Anthony F. Fiorella, Jr., J.), entered or about April 26, 2004, reversed, without costs, and final judgment awarded to landlord.
PRESENT: McCooe, J.P., Gangel-Jacob, Schoenfeld, JJ.
The evidence at trial established that police, in the course of executing a search warrant issued for tenant's apartment, recovered 31 decks of heroin, one bag of cocaine, three bags of marijuana, 26 marijuana cigarettes, and assorted drug paraphernalia, mainly in the bedroom of the single bedroom of the "railroad" style apartment. Two bags of marijuana were found in the refrigerator freezer door in the kitchen. Tenant's grandson, who one week prior had been arrested outside the building for criminal possession of a controlled substance, and her son, who lived in the subject apartment, were present during the search. The two men were arrested and charged with possession of a controlled substance with intent to sell.
Based on this evidence, we find that the landlord met its burden of establishing that tenant's apartment was being used by tenant's son and grandson for drug dealing, and that tenant knew or should have known, or acquiesced in the use of the apartment for illegal purposes ( see Matter of 88-09 Realty, LLC v. Hill, 305 AD2d 409). Tenant failed to present any credible evidence to controvert this inference of knowledge or acquiescence. We note that no adequate explanation was given for tenant's failure to testify.
Exercising our authority to review the record and render the judgment which should have been rendered after a nonjury trial ( see Northern Westchester Professional Park Assocs. v. Town of Bedford, 60 NY2d 492, 299 [1983]), we reverse and award landlord a possessory judgment.
This constitutes the decision and order of the court.