Appellate TermSecond DepartmentSecond, Eleventhand ThirteenthJudicIal DistrictsCases Released on:May 1, 2019By: Pesce, P.J., Aliotta, Elliot, JJ.2016-1587 K CR. PEOPLE v. NEGRON, JESUS — Motion by Paul Skip Laisure, counsel assigned to represent appellant on an appeal from a judgment of conviction of the Criminal Court of the City of New York, Kings County, rendered May 16, 2016, to, among other things, abate the appeal upon the death of appellant on November 18, 2016.Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, it isORDERED that the motion is granted to the extent that the appeal is dismissed, and the matter is remitted to the Criminal Court for further proceedings consistent with People v. Matteson (75 NY2d 745 [1989]) and People v. Mintz (20 NY2d 770 [1967]).April 25, 2019By: Pesce, P.J., Aliotta, Elliot, JJ. 2019-394 K C. MAUER v. ROMA SYRUPS, LTD. — Motion by appellant to stay the enforcement of a judgment of the Civil Court of the City of New York, Kings County, entered January 16, 2019, pending the determination of an appeal therefrom, and to lift any restraining notices.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the branch of the motion seeking to lift the restraining notices is granted; and it is further,ORDERED that the branch of the motion seeking a stay is granted on the condition that the appeal be perfected on or before August 2, 2019; and it is further,ORDERED that in the event that the above condition is not met, the court, on its own motion, may vacate the stay, or respondent may move to vacate the stay, on three days’ notice, and may serve such application in person.April 25, 2019By: Pesce, P.J., Aliotta, Elliot, JJ. 2019-492 QC. NISIM v. RAMIREZ — Motion by appellants for a stay pending the determination of an appeal from an order of the Civil Court of the City of New York, Queens County, dated December 6, 2018.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the motion is granted on condition that the appeal be perfected on or before July 5, 2019. Appellants are directed to pay to respondent any and all arrears in rent and/or use and occupancy at the rate of $319 per month within 10 days from the date of this decision and order on motion and to continue to pay respondent use and occupancy at a like rate as it becomes due; and it is further,ORDERED that in the event that any of the above conditions are not met, the court, on its own motion, may vacate the stay, without further notice, or respondent may move to vacate the stay, on three days’ notice.April 25, 2019Ninth and TenthJudicIal DisTRICTSCases Released on:May 1, 2019By: Adams, P.J., Garguilo, Ruderman, JJ.Law Office of Noel Munier (Noel Munier of counsel), for appellant.Feldherr & Feldherr (Craig Feldherr of counsel), for respondent.2017-1350 N C. NORTH SHORE CARDIAC IMAGING, P.C. v. GLASER — Appeal from an order of the District Court of Nassau County, First District (James M. Darcy, J.), dated May 30, 2017. The order denied tenant’s motion to open his default in appearing in a holdover summary proceeding.ORDERED that the order is affirmed, without costs.In this commercial holdover proceeding, tenant failed to appear on an adjourned court date, and the District Court stated that it was awarding landlord a default final judgment of possession. However, no final judgment was thereafter entered. Tenant appeals from an order of the District Court denying his motion to open his default.To open his default pursuant CPLR 5015 (a) (1), tenant was required to demonstrate both a reasonable excuse for the default and a potentially meritorious defense (see Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]). Here, tenant’s proffered defense is that the 30-day notice of termination, served pursuant to Real Property Law §232-b by regular and certified mail, was improperly served, as landlord did not attempt personal service. However, Real Property Law §232-b, unlike Real Property Law §232-a, does not require service pursuant to RPAPL 735 (see Morse v. Brozzo, 94 AD3d 1184, 1185 [2012] [a month-to-month tenancy for property outside of New York City "may be terminated by one month's notice, which need not be written or personally served"]). Moreover, tenant’s bald assertion that the petition and notice of petition were improperly served failed to rebut landlord’s proper affidavit of service (see HSBC Bank USA, N.A. v. Daniels, 163 AD3d 639 [2018]; Wachovia Bank, N.A. v. Greenberg, 138 AD3d 984, 985 [2016]).As tenant has failed to demonstrate the existence of a meritorious defense, we need not reach the issue of whether tenant established a reasonable excuse for the default (see Oversby v. Linde Div. of Union Carbide Corp., 121 AD2d 373 [1986]).Accordingly, the order is affirmed.ADAMS, P.J., GARGUILO and RUDERMAN, JJ., concur.April 25, 2019By: Adams, P.J., Garguilo, Ruderman, JJ. The Law Offices of Barbara Lee Ford (Barbara Lee Ford of counsel), for appellant.Monette Rimpel, respondent pro se (no brief filed).2017-2311 N C. RIMPEL v. 56 N. LONG BEACH, LLC — Appeal from a judgment of the District Court of Nassau County, Second District (Darlene D. Harris, J.), entered March 31, 2017. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $3,275.ORDERED that the judgment is affirmed, without costs.Plaintiff commenced this small claims action to recover the principal sum of $5,000, representing a security deposit and rent she had given to defendant when she had agreed to rent an apartment from defendant. After a nonjury trial, the District Court awarded plaintiff the principal sum of $3,275, without making any express findings of fact.In a small claims action, our review is limited to a determination of whether “substantial justice has…been done between the parties according to the rules and principles of substantive law” (UDCA 1807; see UDCA 1804; Ross v. Friedman, 269 AD2d 584 [2000]; Williams v. Roper, 269 AD2d 125 [2000]). Furthermore, the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court’s opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Vizzari v. State of New York, 184 AD2d 564 [1992]; Kincade v. Kincade, 178 AD2d 510, 511 [1991]). This deference applies with greater force to judgments rendered in the Small Claims Part of the court (see Williams v. Roper, 269 AD2d at 126).Upon a review of the record, we find that the judgment provided the parties with substantial justice according to the rules and principles of substantive law (see UDCA 1804, 1807). The court’s determination in favor of plaintiff is supported by the record and is based in part on its implicit credibility findings.We note that this court will not consider any evidence which is dehors the record (see Chimarios v. Duhl, 152 AD2d 508 [1989]).Accordingly, the judgment is affirmed.ADAMS, P.J., GARGUILO and RUDERMAN, JJ., concur.April 25, 2019By: Adams, P.J., Garguilo, Ruderman, JJ. Michael Bekritsky, appellant pro se.Chava Tovah Weisberg, respondent pro se.2018-454 N C. WEISBERG v. BEKRITSKY — Appeal from a judgment of the District Court of Nassau County, Third District (Joseph B. Girardi, J.), entered October 20, 2017. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $3,500.ORDERED that the judgment is affirmed, without costs.Plaintiff, who had been performing creative design services for defendant, commenced this small claims action to recover the principal sum of $5,000, allegedly due for work she had performed for defendant from January 1, 2016 to February 27, 2017. At a nonjury trial, plaintiff testified that defendant had failed to pay her $2,500 for preparing a PowerPoint presentation for a particular client and additional sums for attending meetings with that client. Defendant acknowledged that plaintiff was entitled to payment for preparing the PowerPoint presentation, but claimed that he had never agreed to pay her for attending client meetings and that payment was contingent upon payment from the client. Defendant appeals from a judgment of the District Court awarding plaintiff the principal sum of $3,500.In a small claims action, this court’s review is limited to a determination of whether “substantial justice has…been done between the parties according to the rules and principles of substantive law” (UDCA 1807; see UDCA 1804; Ross v. Friedman, 269 AD2d 584 [2000]; Williams v. Roper, 269 AD2d 125, 126 [2006]). Furthermore, the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court’s opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Vizzari v. State of New York, 184 AD2d 564 [1992]; Kincade v. Kincade, 178 AD2d 510, 511 [1991]). This deference “applies with greater force to judgments rendered in the Small Claims Part” of the court (Williams v. Roper, 269 AD2d at 126). The District Court apparently found plaintiff’s testimony to be more credible than defendant’s testimony. Since the court’s determination was amply supported by the evidence, we conclude that the judgment rendered substantial justice between the parties according to the rules and principles of substantive law (see UDCA 1804, 1807).Accordingly, the judgment is affirmed.ADAMS, P.J., GARGUILO and RUDERMAN, JJ., concur.April 25, 2019By: Adams, P.J., Garguilo, Ruderman, JJ. Geneva Morgan, appellant pro se.Long Island Roofing & Repairs Corp., respondent pro se (no brief filed).2018-721 N C. MORGAN v. LONG IS. ROOFING & REPAIRS CORP. — Appeal from a judgment of the District Court of Nassau County, Second District (Paul L. Meli, J.), entered December 12, 2017. The judgment dismissed plaintiff’s action and awarded defendant the principal sum of $2,000 on its counterclaim.ORDERED that the judgment is affirmed, without costs.In this small claims action, plaintiff seeks to recover the principal sum of $5,000 from defendant, a roofing company, for allegedly installing the wrong roof shingles on plaintiff’s home, and defendant interposed a counterclaim seeking to recover the principal sum of $2,000, representing the balance due on the parties’ $6,500 roofing contract. Following a nonjury trial, the District Court dismissed plaintiff’s action and awarded defendant the principal sum of $2,000 on its counterclaim.In a small claims action, our review is limited to a determination of whether “substantial justice has…been done between the parties according to the rules and principles of substantive law” (UDCA 1807; see UDCA 1804; Ross v. Friedman, 269 AD2d 584 [2000]; Williams v. Roper, 269 AD2d 125 [2000]). Furthermore, the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court’s opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Vizzari v. State of New York, 184 AD2d 564 [1992]; Kincade v. Kincade, 178 AD2d 510, 511 [1991]). This deference applies with greater force to judgments rendered in the Small Claims Part of the court (see Williams v. Roper, 269 AD2d at 126).At the trial, plaintiff testified that she had made it clear to defendant’s employee that she wanted the roof shingles defendant was installing to have a uniform look. That employee testified that, after initially choosing one style and color of shingle, plaintiff changed her mind and chose a different one, which the employee told her was a two-tone shingle. The copy of the contract submitted into evidence by plaintiff reflects that a shingle style and color was crossed out and replaced with another, and that the cross-outs were initialed, apparently by plaintiff. The judgment in favor of defendant reflects that the District Court credited the testimony of defendant’s witness. As we find no basis to disturb the court’s credibility determination, the judgment provided the parties with substantial justice according to the rules and principles of substantive law (see UDCA 1804, 1807).Accordingly, the judgment is affirmed. ADAMS, P.J., GARGUILO and RUDERMAN, JJ., concur.April 25, 2019By: Garguilo, P.J., Marano, Tolbert, JJ. 2016-673 S CR. PEOPLE v. MIAO, GUOLAN — Motion by appellant for leave to reargue an appeal from a judgment of conviction of the District Court of Suffolk County, Sixth District, rendered March 7, 2016, which was determined by decision and order of this court dated November 29, 2018.Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, it isORDERED that the motion is denied.MARANO, J., taking no part.April 25, 2019By: Adams, P.J., Garguilo, Ruderman, JJ. 2016-1645 OR CR. PEOPLE v. SCHLAGLER, ANDREW — Motion by respondent to strike the appellant’s brief on an appeal from a judgment of conviction of the City Court of Middletown, Orange County, rendered May 20, 2016, or, in effect, for alternative relief. A review of the record indicated that the pretrial proceedings had been electronically recorded and no affidavit of errors had been filed. By order to show cause dated December 10, 2018, appellant was directed either to show cause before this court why the appeal should not be dismissed on the ground that the appeal was not properly taken in that no affidavit of errors was filed, or, if so advised, to move in this court for a writ of error coram nobis for an extension of time to file an affidavit of errors (see People v. Smith, 52 Misc 3d 143[A], 2016 NY Slip Op 51218[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]), and the motion by respondent to strike the appellant’s brief was held in abeyance in the interim.Upon the order to show cause and no papers having been filed in response thereto, and upon the motion to strike the appellant’s brief and no papers having been filed in opposition thereto, it isORDERED that the motion to dismiss the appeal is granted and the appeal is dismissed; and it is further,ORDERED that the motion to strike the appellant’s brief is denied as academic.April 25, 2019By: Tolbert, J.P., Garguilo, Emerson, JJ. 2017-1249 S CR. PEOPLE v. DAWSON, GREGORY P. — Motion by appellant for leave to prosecute an appeal from a judgment of conviction of the District Court of Suffolk County, First District, rendered May 24, 2017, on an abridged record dispensing with all of appellant’s hearing and trial exhibits, and for an enlargement of time to serve and file an amended appellant’s brief.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the branch of appellant’s motion seeking leave to appeal on an abridged record dispensing with all of appellant’s hearing and trial exhibits is granted; and it is further,ORDERED that the branch of appellant’s motion seeking an enlargement of time to serve and file an amended appellant’s brief is granted and appellant shall serve and file the amended appellant’s brief within 20 days of the date of this decision and order on motion; and it is further,ORDERED that respondent, if so advised, may serve and file an amended respondent’s brief and file all marked exhibits under its control that were admitted into evidence during the suppression hearing and trial within 14 days from the service of appellant’s brief; and it is further,ORDERED that appellant, if he be so advised, may serve and file a reply brief within seven days from the service of the respondent’s brief.April 25, 2019By: Adams, P.J., Garguilo, Emerson, JJ.2017-1980 W CR. PEOPLE v. WEBB, KERWIN — Motion by appellant for leave to prosecute an appeal from a judgment of conviction of the City Court of Mount Vernon, Westchester County, rendered October 11, 2017, as a poor person, and for the assignment of counsel.Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, it isORDERED that the motion is granted and John Lewis, Esq. is assigned pursuant to article 18-B of the County Law.April 25, 2019By: Adams, P.J., Garguilo, Ruderman, JJ.2017-2425 RO C. SCHRETTNER v. SARAGURO — Motion by appellant to strike the respondent’s brief on an appeal from a judgment of the Justice Court of the Town of Clarkstown, Rockland County, entered June 15, 2017.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the motion is denied.April 25, 2019By: Adams, P.J., Garguilo, Ruderman, JJ.2019-81 W C. LAKEVIEW AFFORDABLE HOUS., LLC v. TURNER — Motion by appellant on an appeal from an order of the City Court of White Plains, Westchester County, entered January 8, 2019, to reinstate a stay granted by decision and order on motion of this court dated February 4, 2019 and vacated by decision and order on motion of this court dated March 20, 2019, for related relief, and for leave to prosecute the appeal as a poor person.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED, on the court’s own motion, that an enlargement of time to perfect the appeal is granted and the time to perfect the appeal is enlarged to July 5, 2019; and it is further,ORDERED that the branch of the motion seeking to reinstate the stay is granted on condition that appellant perfect the appeal by July 5, 2019 and on the further condition that appellant pay respondent rent and/or use and occupancy from the date of this decision and order on motion at the rate previously payable as rent as it becomes due; and it is further,ORDERED that in the event that the above conditions are not met, the court, on its own motion, may dismiss the appeal and/or vacate the stay, or respondent may move to dismiss the appeal and/or vacate the stay on three days’ notice, and may serve such application in person; and it is further,ORDERED that the remainder of appellant’s motion is denied.It is noted that the record on appeal has been transmitted to this court and appellant does not show why any further transcripts are required for the perfection of the appeal.April 25, 2019By: Garguilo, J.2019-220 W CR. PEOPLE v. MURPHY, PATRICK G. — Applications by defendant, returnable February 18, 2019 and April 9, 2019, respectively, pursuant to CPL 450.15 and 460.15, for a certificate granting leave to appeal to this court from an order of the Justice Court of the Town of Bedford, Westchester County, entered January 15, 2019, which has been referred to me for determination.Upon the papers filed in support of the applications and no papers having been filed in opposition thereto, it isORDERED, on the court’s own motion, that defendant’s applications are consolidated for purposes of disposition; and it is further,ORDERED that the applications are denied.April 25, 2019By: Adams, P.J., Garguilo, Ruderman, JJ.2019-581 S C. TAB SUFFOLK ACQUISITIONS, LLC v. SAMUELSEN — Motion by appellants for a stay pending the determination of an appeal from an order of the District Court of Suffolk County, Sixth District, entered January 30, 2019.Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, it isORDERED that the motion is denied; and it is further,ORDERED, on the court’s own motion, that the appeal is dismissed, as any right of direct appeal from the order terminated with the entry of a final judgment (see Matter of Aho, 39 NY2d 241, 248 [1976]). In addition, the order appealed from did not determine a motion made on notice and thus is not appealable as of right (see UDCA 1702 [a] [2]; New Century Osteopathic v. State Farm Fire & Cas. Ins. Co., 22 Misc 3d 126[A], 2008 NY Slip Op 52584[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2008]), and leave to appeal has not been granted.CPLR 2211 provides that a “motion on notice is made when a notice of the motion or an order to show cause is served.”April 25, 2019By: Adams, P.J., Garguilo, Ruderman, JJ.2019-590 N C. KITTY HOLDING CORP. v. CORRIETTE — Motion by appellant for a stay pending the determination of an appeal from a final judgment of the District Court of Nassau County, First District, entered March 7, 2019, and an order of that court entered March 25, 2019.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that appellant’s motion is granted on condition that the appeal be perfected on or before July 5, 2019, and upon the further condition that within 15 days from the date of this decision and order on motion appellant pay respondent the $32,500 that was due under the parties’ stipulation and any and all arrears in rent and/or use and occupancy from March 7, 2019 at the rate previously payable as rent, and continue to pay use and occupancy at a like rate as it becomes due; and it is further,ORDERED that in the event that any of the above conditions are not met, the court, on its own motion, may vacate the stay, or respondent may move to vacate the stay, on three days’ notice, and may serve such application in person.April 25, 2019By: Adams, P.J., Garguilo, Emerson, JJ.2019-00642 N CR. PEOPLE v. FAZYLOV,YUNATAN — Motion by appellant on an appeal from a judgment of conviction of the District Court of Nassau County, First District, rendered March 6 , 2019, for the assignment of counsel. By order dated March 6, 2019, the District Court of Nassau County, First District, granted an application pursuant to CPL 380.55 for leave to prosecute the appeal as a poor person.Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, and upon the order dated March 6, 2019, it isORDERED that, pursuant to County Law §722, the following named attorney is assigned as counsel to prosecute the appeal:N. Scott Banks, Esq.,Legal Aid Society of Nassau County 40 Main Street, 3rd FloorHempstead, New York 11550and it is further,ORDERED, on the court’s own motion, that the appeal shall be perfected expeditiously; and it is further, ORDERED that the court stenographer, if any, shall promptly make, certify and file two typewritten transcripts of the minutes of all proceedings, if any, with the clerk of the trial court, who is directed to furnish without charge one copy to the attorney who is now assigned as counsel to prosecute the appeal and to file the second copy of the transcript, if any, with the record, which shall then be filed with this court; and it is further,ORDERED that assigned counsel shall serve a copy of the transcript, if any, upon the District Attorney, same to be returned upon argument or submission of the appeal; and it is further,ORDERED that upon service of a copy of this decision and order on motion upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report, if any, prepared in connection with appellant’s sentencing, including the recommendation sheet and any prior reports on appellant which are incorporated or referred to in the report.April 25, 2019By: Adams, P.J., Garguilo, Emerson, JJ.2019-00645 N CR. PEOPLE v. ONICHA, JUDE — Motion by appellant on an appeal from a judgment of conviction of the District Court of Nassau County, First District, rendered March 1, 2019, for the assignment of counsel. By order dated March 1, 2019, the District Court of Nassau County, First District, granted an application pursuant to CPL 380.55 for leave to prosecute the appeal as a poor person.Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, and upon the order dated March 1, 2019, it isORDERED that, pursuant to County Law §722, the following named attorney is assigned as counsel to prosecute the appeal:N. Scott Banks, Esq.,Legal Aid Society of Nassau County 40 Main Street, 3rd FloorHempstead, New York 11550and it is further,ORDERED, on the court’s own motion, that the appeal shall be perfected expeditiously; and it is further,ORDERED that the court stenographer, if any, shall promptly make, certify and file two typewritten transcripts of the minutes of all proceedings, if any, with the clerk of the trial court, who is directed to furnish without charge one copy to the attorney who is now assigned as counsel to prosecute the appeal and to file the second copy of the transcript, if any, with the record, which shall then be filed with this court; and it is further,ORDERED that assigned counsel shall serve a copy of the transcript, if any, upon the District Attorney, same to be returned upon argument or submission of the appeal; and it is further,ORDERED that upon service of a copy of this decision and order on motion upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report, if any, prepared in connection with appellant’s sentencing, including the recommendation sheet and any prior reports on appellant which are incorporated or referred to in the report.April 25, 2019By: Adams, P.J., Garguilo, Emerson, JJ.2019-00647 N CR. PEOPLE v. LEON-MORILLO, GERLIN — Motion by appellant on an appeal from a judgment of conviction of the District Court of Nassau County, First District, rendered February 28, 2019, for the assignment of counsel. By order dated February 28, 2019, the District Court of Nassau County, First District, granted an application pursuant to CPL 380.55 for leave to prosecute the appeal as a poor person.Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, and upon the order dated February 28, 2019, it isORDERED that, pursuant to County Law §722, the following named attorney is assigned as counsel to prosecute the appeal:ANDREW E. MACASKILL, ESQ., 355 POST AVENUE, SUITE 201 WESTBURY, NEW YORK 11590and it is further,ORDERED, on the court’s own motion, that the appeal shall be perfected expeditiously; and it is further,ORDERED that the court stenographer, if any, shall promptly make, certify and file two typewritten transcripts of the minutes of all proceedings, if any, with the clerk of the trial court, who is directed to furnish without charge one copy to the attorney who is now assigned as counsel to prosecute the appeal and to file the second copy of the transcript, if any, with the record, which shall then be filed with this court; and it is further,ORDERED that assigned counsel shall serve a copy of the transcript, if any, upon the District Attorney, same to be returned upon argument or submission of the appeal; and it is further,ORDERED that upon service of a copy of this decision and order on motion upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report, if any, prepared in connection with appellant’s sentencing, including the recommendation sheet and any prior reports on appellant which are incorporated or referred to in the reportApril 25, 2019
