JUDGMENT AFTER TRIAL In this commercial nonpayment proceeding, petitioner landlord seeks $54,500 in rent arrears for the occupancy of premises located at 1449 Fulton Street, Brooklyn New York from July of 2017 until April of 2019. Tenant asserts counterclaims for rent abatement due to the alleged damaged condition of the premises, and for attorney fees in defending the instant and a prior action.Based on the trial held on April 15-16, 2019 and the post-trial memos, the petition is dismissed without prejudice as landlord failed to establish its prima facie burden.To prove the amount of the rent arrears, the landlord produced its property manager as a witness, who testified that he had no personal knowledge of the amount of rent paid by the respondent. The witness stated that all rent was sent to a third-party company, which the landlord had retained to receive and cash the rent checks and enter data regarding the received payments in a computer program. Based upon the third-party company’s entry of data, the program would generate a rent ledger.The landlord’s counsel questioned the property manager regarding the contents of the rent ledger. However, as the witness had neither personal knowledge of the data contained in the ledger, nor of the third-party company’s practice in creating and maintaining the ledger, the witness was precluded from testifying as to the ledger.The Court further rejected the landlord’s request to enter the ledger into evidence, as it failed to demonstrate the evidentiary foundation of the ledger.Specifically, there was no testimony by the third-party company regarding how or by whom the ledger was created or maintained during the course of its practice, or whether the data in the ledger was recorded contemporaneously or shortly after the transactions described in the ledger. (CPLR 4518). There was further no evidence submitted to establish the reliability of the computer program which created the ledger.Then, in a further attempt to establish the amount of rent arrears from June of 2017 through April of 2019, the landlord called the respondent, Ballo Yaya as its witness.Mr. Yaya initially testified to paying half of his rent during said period because water leaks substantially damaged parts of the leasehold and destroyed his merchandise. As a result, he claimed that he was unable to fully operate his business and was effectively partially and constructively evicted from the premises.However, on cross examination, the respondent stated that there were two additional payments in the amounts of $5000 and $10,000, which he had not mentioned during direct testimony. Further undermining his testimony, Mr. Yaya stated that he could not recall the dates or the amounts of the rent payments; and that all payments with one exception, were issued by Mr. Yaya’s wife from her business account, which she exclusively controls and maintains. In fact, with the exception of one payment, it was Mr. Yaya’s wife who had signed and issued all of the rent checks.While at some point, Mr. Yaya claimed that he had a photographic memory, the court finds that his testimony regarding rent payment was ambiguous, inconsistent, and most notably, purely speculative. There was no credible evidence submitted to establish Mr. Yaya’s personal knowledge of the payments.To the contrary, Mr. Yaya’s testimony revealed that as it was his wife who issued the rent checks from her business account, she was the one with personal knowledge of the amount of rent paid. Nevertheless, neither party called Mr. Yaya’s wife as a witness, despite her presence in the courtroom during the trial.Nor was a witness produced on behalf of the third-party company which generated the rent ledger to establish the amount of rent the company received on behalf of respondent, the amount of rent cashed, or the evidentiary foundation of the rent ledger the company had created.Accordingly, the petitioner has failed to prove the amount of any rent arrears by credible evidence which warrants dismissal of the action without prejudice. (See Lyddy v. Ayling, 111 Misc. 2d 449 [Civ Ct, New York County 1981]; De Laurentis v. Seafarers Port O’Call Corp., 6 Misc. 2d 697 [Sup Ct, Kings County 1957]; Watkins v. Pacific Finance Corp., 259 AD 685 [2d Dept 1940]).Respondent’s counterclaim seeking abatement due to partial constructive eviction further warrants dismissal without prejudice. The landlord of a commercial premise may not recover the full amount of rent if the tenant has been constructively evicted from part of the leasehold (Barash v. Pennsylvania Term. Real Estate Corp., 26 NY2d 77 [1970]). However, the issue of abatement may not be severed from the nonpayment proceeding, as abatement is inextricably intertwined with the issues of rent arrears. (see Empire State Building Co., LLC v. EAI Consulting & Trading, Inc.16 Misc. 3d 1108(A) [Civ. Ct, New York County 2007] Johnson v. Cabrera, 246 AD2d 578 [2nd Dept, 1998], Sutton Fifty-Six Co. v. Fredecky, 93 AD2d 720 [1st Dept 1990]). In view of the dismissal of the petition, the counterclaim for abatement is further dismissed without prejudice.Based on the foregoing, the petition and the counterclaim for abatement are dismissed without prejudice. The remaining counterclaims for attorney fees and costs of the instant and prior actions are dismissed with prejudice, as there is no right to attorney fees absent statute or agreement proof of which was not presented here.Respondent’s remaining contentions, including the alleged insufficiencies of the Notice to Cure and deed certification, and non-compliance with the Multiple Dwelling registration requirements are moot.Dated: May 24, 2019
