By: Gonzalez, J.P., Cooper, Edmead, JJ.18-361. 34 HILLSIDE AVENUE, LLC, pet-lan-res, v. NANCY MATEO, ET AL, res-ten-app — Order (Gary F. Marton, J.), entered on or about July 6, 2018, reversed, without costs, and tenant’s motion to be restored to possession granted on the condition that she pay any arrears and eviction costs within 10 days after service of a copy of this order with notice of entry.In settlement of a chronic nonpayment holdover proceeding, tenant consented to the entry of a final judgment, with execution of the warrant stayed provided she paid her rent by the tenth day of the month during a two year probationary period. The documentary evidence shows that tenant obtained a money order for the June 2018 payment on June 7. However, because of a scrivener’s error, the money order, which was in the correct amount, was made payable to A&E LLC, a variation of the name of landlord’s managing agent, A&E Real Estate, and not landlord, 34 Hillside Avenue LLC. In consequence, payment was not timely received by landlord and tenant was evicted.Tenant’s obviously inadvertent error in inserting the wrong payee on the money order, which she timely purchased in the correct amount, is excusable pursuant to the court’s supervisory power over enforcement of so-ordered stipulations (see Malvin v. Schwartz, 65 AD2d 769 [1978], affd 48 NY2d 693 [1979]). Particularly in housing matters where a forfeiture of shelter is implicated, a default of this nature should be “measured against the harsh result which would obtain upon literal enforcement of the default provision in the stipulation” (Bank of New York v. Forlini, 220 AD2d 377, 378 [1995]). In the circumstances, and given the long-term stabilized tenancy, tenant’s disability, the absence of any demonstrated prejudice to landlord, and the proof that she has complied with her payment obligations during the period of the stay granted by this court, we favorably exercise our discretion to conditionally relieve tenant from her payment default (see Matter of Lafayette Boynton Hsg. Corp. v. Pickett, 135 AD3d 518 [2016]; Harvey 1390 LLC v. Bodenheim, 96 AD3d 664, 664 [2012]; 102-116 Eighth Ave. Assoc. v. Oyola, 299 AD2d 296 [2002]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.January 28, 2019
By: Shulman, P.J., Ling-Cohan, Edmead, JJ.15-229. THE PEOPLE OF THE STATE OF NEW YORK, res, v. RORY FRIDAY, def-app — Judgment of conviction (Harold Adler, J.), rendered October 7, 2014, affirmed.The verdict convicting defendant of attempted assault in the third degree (see Penal Law §§110.00, 120.00[1]), attempted criminal obstruction of breathing or blood circulation (see Penal Law §§110.00, 121.11[a]), attempted endangering the welfare of a child (see Penal Law §§110.00, 260.10[1]), third-degree menacing (see Penal Law §120.15) and second-degree harassment (see Penal Law §240.26[1]) 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 upon which to disturb the trial court’s determinations concerning credibility. The evidence of defendant’s physical altercation with his sixteen year-old stepdaughter, wherein he pushed her by the shoulders, grabbed one of her legs and pulled her ankle, knelt on her chest and grabbed her neck, was sufficient to establish that he acted with the mens rea required under the statutes. Defendant’s contention that he was deprived of due process as a result of the prosecutor eliciting prior consistent statements of the complainant from prosecution witnesses, which allegedly bolstered complainant’s testimony, is partially unpreserved and, in any event, without merit. The evidence was received for the legitimate, nonhearsay purpose of completing the narrative of events leading to defendant’s arrest (see People v. Welcome, 181 AD2d 628 [1992], lv denied 79 NY2d 1055 [1992]; see also People v. Tosca, 98 NY2d 660, 661 [2002]) and after defendant opened the door to such testimony by challenging the complainant’s credibility (see People v. Shortell, 155 AD3d 1442, 1445 [2017], lv denied 31 NY3d 1087 [2018]). Moreover, even if inferential bolstering had occurred, we would find it to be harmless in the context of this bench trial, where the court is presumed to decide a case based upon appropriate legal criteria (see People v. Moreno, 70 NY2d 403, 406 [1987]), and given the overwhelming evidence of defendant’s guilt (see People v. Crimmins, 36 NY2d 230, 241-242 [1975]). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.January 28, 2019
