Opinion
2004-866 K C.
Decided November 4, 2005.
Appeal from an order of the Civil Court of the City of New York, Kings County (Gary F. Marton, J.), entered on June 28, 2004. The order denied tenant's motion to vacate the warrant for good cause shown in a nonpayment summary proceeding.
Order reversed without costs and tenant's motion to vacate the warrant granted.
PRESENT: PATTERSON, J.P., RIOS and BELEN, JJ.
Tenant's default under the terms of the court order directing payment of the money judgment and rent arrears in the sum of $3,242.97 by June 18, 2004, was de minimis. In view of the long duration of the tenancy, the landlord's apparent delay in making the repairs and tenant's preparedness to pay the arrears, tenant's motion to vacate the warrant should have been granted for good cause shown ( see RPAPL 749; see also 1058 Bushwick Ave. Corp. v. Heard, 7 Misc 3d 133[A], 2005 NY Slip Op 50647[U] [App Term, 2d 11th Jud Dists]; Rhinestone Ventures Assoc. v. Vatter, 2002 NY Slip Op 40265[U] [App Term, 2d 11th Jud Dists]; Jones v. Allen, 185 Misc 2d 443, 449 [App Term, 2d 11th Jud Dists 2000]).
We note that tenant has deposited into the court below the arrears owed at the time that the order appealed from was entered and is apparently otherwise up to date in rent. The funds on deposit in the court below may be released to landlord.
Rios and Belen, JJ., concur.
Patterson, J.P., dissents in a separate memorandum.
By reversing the order of the court below based on the length of tenancy, tenant's ability to pay the arrears and landlord's failure to make repairs, the majority has effectively substituted its own credibility assessment for that of the hearing court. Accordingly, I respectfully dissent.
It is well-settled that issues of credibility are appropriately resolved by the trier of fact, who is in the best position to assess a witness's demeanor ( see R.P. Cautela Realty, Inc. v. McDonald, 239 AD2d 481 [2nd Dept 1997]; McMullen v. Arnone, 79 AD2d 496, 498 [2nd Dept 1981]). Such findings are accorded great deference and should not be disturbed on appeal if supported by a fair interpretation of the evidence ( see McCray v. Petrini, 212 AD2d 676 [2nd Dept 1995]; McMullen v. Arnone, 79 AD2d at 498).
Here, the hearing court's determination that no good cause exists to vacate the warrant is amply supported by the record. Crediting the testimony of landlord's witnesses, the court rejected tenant's assertions that he was prepared to pay the arrears timely, but was unable to do so after several attempts to reach landlord. The court noted that landlord's employees testified that they were in the office until 5:30 P.M. on the date the arrears were due and that tenant never appeared to pay the arrears nor did he call. Indeed, some of the money orders used to pay the arrears were dated after the deadline for payment. On this record, it cannot be said that good cause exists to excuse tenant's default.