Opinion
L T 37869/10.
Decided September 27, 2010.
NOVICK EDELSTEIN LUBELL REISMAN, WASSERMAN LEVENTHAL, P.C., By: LAWRENCE SCHIRO, Esq., Yonkers, New York, Attorneys for Petitioner.
LILLIAN PENA, ANTONIO DELVALLE III, Respondents.
This summary holdover proceeding was commenced by PARKCHESTER PRESERVATION COMPANY, LP (Petitioner) and seeks to recover possession of Apartment 2A at 1430 PARKCHESTER AVENUE, BRONX, NEW YORK 10462 (Subject Premises) based on the allegation that LILLIAN PENA ANTONIO DELVALLE III (Collectively Respondents), the tenants of record for the Subject Premises have breached the terms of their lease agreement by harboring a dog in the Subject Premises, and that said dog "disrupts the peace and quiet and enjoyment of" Respondents' neighbors ". . because it barks at all hours of the day and night and urinates and defecates in the public hallways (6/11/10 notice to cure)."
PROCEDURAL HISTORY
Petitioner issued a notice of cure dated June 11, 2010, which provided Respondent's must cure their lease violation no later than June 25, 2010. The notice was served by a licensed process server by personal delivery to Respondent Delvalle on June 17, 2010 at the Subject Premises. On June 30, 2010, Petitioner issued a notice of termination terminating Respondents' tenancy effective July 7, 2010. The notice was served by conspicuous place delivery on July 2, 2010. The petition is dated July 12, 2010, and the proceeding was originally returnable on the Court's calendar on July 28, 2010 at 9:30 am.
At the time of the writing of this decision the Notice of Petition and affidavits of service for same are not in the Court file.
Respondents failed to appear for the initial return date, and the proceeding was adjourned to August 5, 2010 at 2pm for an inquest. The Court commenced the inquest on August 5, 2010. During the course of the inquest the Court declined to admit some proposed documents into evidence. Petitioner requested an opportunity to submit a brief on the issue, and was granted an adjournment through August 19, 2010 for said purpose. The matter was marked decision reserved on August 19, 2010.
FACTS
Petitioner's witness at inquest was Hedy Boucala. . Petitioner put into evidence a certified copy of the deed for the Subject Premises (Exhibit 1), as well as Respondents' original lease (Exhbit 2) and most recent lease renewal (Exhbit 3). The original lease was between Respondent Pena and Petitioner. It is dated May 1, 2004 for a two year term through May 31, 2006 at a monthly rent of $895.00 per month. The most recent lease renewal is in the name of both respondents for a period commencing June 1, 2009 through May 31, 2010 at a rental of $972.74 per month.
The notice to cure referenced above asserts that respondents' violated paragraphs 39(5) and 16 of the original lease agreement. Paragraph 39 is captioned rules and provides in pertinent part, in subsection (5) that "Dogs, cats or other animals are not allowed in the unit or the building." Paragraph 16 of the lease provides that the tenant must comply with all "laws, orders, rules requests and directions of all governmental authorities."
Petitioner offered as Exhbit 4 for identification 3 documents. Petitioner's Exhibits 4a 4b for identification are two tickets. The tickets are labeled "Parkchester South Condominium Violations of Regulations". Exhbit 4A is dated May 28, 2010 issued at 11:26 am and is filled in with the handwriting of an officer identified as J. Moore. It indicates that Lillian Pena was cited for a violation for having a dog. Exhbit 4B is a second ticket issued on the same day and time but the violation issued is listed as noise.
Exhbit 4C is a document generated by a computer printout. It is labeled PSC Public Safety and provides a summary of the incident referenced in Exhibits 4a 4b. It provides that management called officer Janeen Moore who went to the Subject Premises for 1 minute and heard a dog in the apartment and issued the summons. The document includes the following statement presumably entered by the responding officer "While in the south oval I heard a dog barking, coming from 1430 Parkchester Road. I responded to said location and conducted a building check and heard the barking coming from Apt. 2A. I radio for central to check if the apt is allowed a dog and central stated no. Summons issued for noise and a dog. Central notified."
Petitioner argues that the Court's denial of admission of these documents as hearsay would be improper and asserts further that the documents qualify as Petitioner's business records and that the testimony of the officer who issued the summons is not required as foundation.
DISCUSSION
Generally speaking, the Exhibits at issue contain out of court statements, and are offered for their truth, and as such are hearsay and inadmissible, unless they fall within an exception to the hearsay rule ( Wilson v Bodian, 130 AD2d 221, 228-229 [1987, 1st Dept]). CPLR 4518(a) provides an important exception to the hearsay rule for business records. CPLR 4518 (a) provides in pertinent part:
Any writing or record, whether in the form of an entry of a book or otherwise, made as a memorandum or record of any act or transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business, and that it was the regular course of such business to make it, at the time of the act transaction, occurrence or event, or withing a reasonable time thereafter. All other circumstances of the making of the memorandum or record, including lack of personal knowledge by the maker, may be proved to affect its weight, but they shall not affect its admissibility.
In the case at bar, Petitioner has established that the tickets (Exhibits 4a 4b) and computer entry (Exhbit 4c) comply with the foundational prerequisites established by CPLR 4518(a).
The Court takes judicial of Petitioner's website, which describes its public safety department as ". . . a highly trained staff of 65 Public Safety Officers licensed as New York City Special Patrol Officers and authorized to act as New York State Peace Officers to maintain the safety of our condominium residents and visitors. In addition to responding to criminal complaints our officers also enforce condominium regulations and quality of life issues (http://www.parkchester.org/PublicSafety.html)."
The officer making the report was required to report such events, and the report was made at or about the time of the event recorded in the regular course of the officer's work ( Perfetto v. Hoke, 898 F Supp 105).
Petitioner's witness was sufficiently familiar with the business practices of Petitioner to testify that these documents were made in the regular course of business, that it was in the regular course of Petitioner's business to make and keep such documents, that the officer making the entries was under a business obligation to do so and that entries were made at or about the time of the occurrence of the events.
To some extent the documents also seem to be prepared in anticipation of and for litigation. The documents are intended to establish lease violations on the part of residents at the Subject Building. A lease violation report could be construed as being prepared for litigation over the alleged lease violation. Reports prepared for litigation are generally inadmissible evidence under the business records exception to the hearsay rule ( Wilson v Bodian, 130 AD2d 221 [1987, 1st Dept]; Flaherty v. American Turners New York, Inc. 291 AD2d 256 [2002, 1st Dept]).
However, in this proceeding there does also appear to be business and administrative reasons for the making and keeping of the documents, and while it was certainly foreseeable at the time the documents were prepared that they might later be used for litigation purposes, as that was not their sole purpose when made, they are still admissible as business records (People v. Kanhai , 8 Misc 3d 447 ).
Finally, the Court notes that the admission of business records in evidence does not mean that the entries must be accepted as true. The Court must consider in determining what weight to afford the evidence the fact that it was prepared by the Petitioner's agent with the knowledge that it may used in petitioner's favor in litigation and as directed by the statute, the fact that the maker of the report is not present to testify and the circumstances surrounding the manner in which the report were made do determine the weight to be afforded the evidence by the court (CPLR 4518(a); Rock Ridge Townhouses, Inc. v Village of Tupper Lake 99 AD2d 914; Commerce and Industry Ins. Co. v Sciales 132 AD2d 516).
CONCLUSION
Based on the foregoing the Court finds that Petitioner's Exhibits 4a, b, and c are admissible as business records pursuant to CPLR 4518(a). The proceeding is restored to the calendar for the conclusion of the inquest. Petitioner still needs to address other issues, including but not limited to proof of allegations in the predicate notice regarding the nature and extent of the disturbance caused by the dog and post cure incidents. The matter shall appear on the Part B, Room 360, Calendar on Wednesday October 13, 2010 at 2pm for continued inquest.
This constitutes the decision and order of this Court.