Opinion
2003-1515 RIC.
Decided July 1, 2004.
Appeal by plaintiff from a small claims judgment of the Civil Court, Richmond County (J. McMahon, J.), entered July 10, 2003, in favor of defendant dismissing the action.
Judgment unanimously reversed without costs and matter remanded for a new trial.
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
In this small claims action for rent due, the court's dismissal of the action, based upon a credibility determination adverse to plaintiff, was clearly unsupported by the record and did not render substantial justice pursuant to the rules and principles of substantive law (CCA 1804, 1807). It was undisputed at trial that defendant left the apartment as of April 2002, that it was not relet until July 2002, and that rent was not paid for May or June 2002. The main issue presented for resolution was the validity of a one-year lease agreement allegedly executed by the parties, effective March 1, 2002.
Defendant disputed the genuineness of his signature on the lease. However, the court made no attempt to resolve this issue through the procedure set forth in CPLR 4536 or by any other available means ( see generally 3 Bender's New York Evidence § 7.07 [1]). Plaintiff, who had no prior notice that defendant would contest his alleged signature on the lease, was provided no opportunity to bring forward comparison evidence as CPLR 4536 and the common law permit ( id.). Absent such evidence, the court's apparent determination that defendant's signature was forged was not based, as required, upon the fair preponderance of the evidence ( id. at § 7.07 [1] [b]; People v. Molineux, 168 NY 264, 328).
An issue of fact exists as to the genuineness of defendant's signature on the lease, and on the present state of the record, this court cannot hold, as a matter of law, that the signature on the lease is that of defendant ( see Seoulbank, N.Y. Agency v. D J Export Import Corp., 270 AD2d 193; Preferred Capital, Inc. v. IGHTMA, Inc., NYLJ, Oct. 9, 2003 [App Term, 9th 10th Jud Dists]). If the lease is indeed valid, landlord would be entitled to recover in accordance with its terms ( see generally Holy Props. v. Cole Prods., 87 NY2d 130).
Moreover, the court's decision, which states that "claimant could not produce prior leases," fails to take account of the fact that claimant was never asked about any prior leases and that both parties agreed that there had been no prior leases; defendant had been a month-to-month tenant pursuant to an oral agreement. In addition, we note that the two prior actions involving these parties stemmed from alleged property damage to the premises, not defendant's liability for rent, and plaintiff was fully entitled to bring the present action ( see generally CCA 1808; Molska v. Garfield, 2 AD3d 510). The evident adverse credibility inference that the court drew from these issues was therefore unsupported by the record ( id.). Accordingly, the matter must be remanded for a new trial.