By: Gonzalez, J.P., Cooper, Edmead, JJ.18-213/214. CDC EAST 105TH STREET REALTY LP, pet-app, v. ESTELLE CACHOLA, res-res — Orders (John H. Stanley, J.), dated, respectively, July 13, 2017 and November 29, 2017, insofar as appealed from, affirmed, with one bill of $10 costs.We agree with Civil Court that respondent made a prima facie showing of entitlement to judgment as a matter of law on her claim that she is entitled to succession rights to the subject rent stabilized apartment premises previously occupied by the tenant of record, respondent’s mother (see Wildwood Co., LP v. DeBruin, 59 Misc 3d 127[A], 2018 NY Slip Op 50375[U] [App Term, 1st Dept 2018]; 354 E. 66th St. Realty Corp. v. Curry, 26 Misc 3d 130[A], 2010 NY Slip Op 50025[U][App Term, 1st Dept 2010]). Respondent’s evidentiary submission, largely uncontroverted by petitioner, conclusively demonstrated that she was the daughter of the deceased tenant and that she continuously resided in the apartment with her mother for at least three years prior to her mother’s death in December 2015.Respondent has also submitted proof indicating that she qualifies as a “disabled person” within the meaning of Rent Stabilization Code succession provisions (see 9 NYCRR §2523.5[b][1], [4]). However, we need not reach the issue of whether her succession claim should be measured by the one-year co-occupancy requirement applicable to a disabled person, since the proof shows that she satisfied the two-year co-occupancy requirement applicable to a non-disabled person.In opposition to respondent’s prima facie showing, petitioner failed to raise a triable issue of fact. Petitioner offered “nothing concrete or reliable” (Navarra v. Levy, 214 AD2d 470, 471 [1995]) to dispute respondent’s evidence that she left her upstate New York residence and relocated to the subject apartment, occupying it with her ailing mother for the requisite statutory period prior to her mother’s death. Petitioner rests its opposition on the fact that respondent’s mother, who suffered from Alzheimer’s Disease, did not include respondent’s name and SSI disability income on annual household composition and income declarations. However, such an omission by the deceased tenant is not dispositive of respondent’s otherwise well documented succession claim (see 2013 Amsterdam Ave. Hous. Assoc. v. Estate of Wells, 10 Misc 3d 142[A], 2006 NY Slip Op 50084[U] [App Term, 1st Dept 2006]; see also Matter of Murphy v. New York State Div. of Hous. & Community Renewal, 21 NY3d 649 [2013]; Matter of Manhattan Plaza Assoc., L.P. v. Department of Hous. Preserv. & Dev. of City of N.Y., 8 AD3d 111 [2004]), particularly given that petitioner was aware of respondent’s occupancy and request to be added to the lease since April 2013.To the extent that petitioner asserts that summary judgment was premature as discovery had not taken place, respondent correctly notes that petitioner had multiple opportunities, including two stipulated adjournments, to seek discovery in this matter and failed to do so (see Meath v. Mishrick, 68 NY2d 992, 994 [1986]; Wildwood Co., LP v. DeBruin, 59 Misc 3d 127[A]; see also Draper v. Georgia Props., 94 NY2d 809 [1999]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.October 22, 2018
By: Shulman, P.J., Gonzalez, Edmead, JJ.14-195. THE PEOPLE OF THE STATE OF NEW YORK, res, v. ANTONE PORTIS, def-app — Judgment of conviction (Anthony J. Ferrara, J.), rendered November 15, 2012, affirmed.The verdict was supported by legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury’s credibility determinations. The physical injury element of the third-degree assault conviction (see Penal Law §§120.00[1], 10.00[9]) was established by evidence that, after defendant pushed the victim into a clothing rack, placed his hands around her neck and squeezed very hard, then pushed her onto her bed, jumped on top of her and hit her on the head, the victim sustained redness on her face and neck, scratches close to her face, and swelling on the side of her face, which felt painful. The jury could have reasonably concluded that defendant’s actions caused “more than slight or trivial pain” (People v. Chiddick, 8 NY3d 445, 447 [2007]), even though the victim did not seek medical attention (see People v. Guidice, 83 NY2d 630, 636 [1994]; People v. Mullings, 105 AD3d 407 [2013], lv denied 21 NY3d 945 [2013]).The court properly admitted portions of the telephone call made by defendant from Riker’s Island to his mother and brother, that was recorded by the Department of Correction (see People v. Johnson, 27 NY3d 199, 206 [2016]; People v. Dickson, 143 AD3d 494, 495 [2016], lv denied 28 NY3d 1183 [2017]). Defendant’s statement during the call “Yeah I choked her,” was admissible as an admission (see People v. Chico, 90 NY2d 585, 589 [1997]; People v. Moore, 118 AD3d 916, 918 [2014], lv denied 24 NY3d 1086 [2014]), notwithstanding his subsequent statement “I didn’t choke her, but I like grabbed her to slow her down.” The subsequent statement raised an issue as to the weight of the evidence, not as to its admissibility (see People v. McKenzie, 161 AD3d 703, 704 [2018]).The record also supports the conclusion that defendant heard and understood the implication of his mother’s statements during the call regarding what the victim had told her, including that defendant “tried to kill her” and “had her on the bed, you was choking her, you was hitting her.” Defendant merely responded “yeah, alright, whatever.” Defendant’s failure to contradict those statements justifies an inference of assent or acquiescence as to their truth, and the statements are therefore admissible as adoptive admissions (see People v. Gomez, 21 AD3d 827, 828 [2005], lv denied 6 NY3d 776 [2006]; People v. Williams, 251 AD2d 266, 267 [1998], lv denied 92 NY2d 1040 [1998]).In any event, even assuming the trial court erred in admitting the challenged evidence, the error was harmless beyond a reasonable doubt in view of the overwhelming evidence of defendant’s guilt (see People v. Crimmins, 36 NY2d 230, 241-242 [1975]; People v. Suero, 159 AD3d 656 [2018], lv denied 31 NY3d 1122 [2018]), which included the detailed and compelling testimony of the victim; photographs of her face and neck, the broken clothing rack; and the testimony of the victim’s two friends and the arresting officer regarding the victim’s appearance and comportment after the incident.THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.October 22, 2018
