Opinion
570658/02, 05-270-3.
Decided November 18, 2005.
Landlord appeals from (1) a final judgment of the Civil Court, New York County (Cyril K. Bedford, J.), entered January 29, 2004, which, after a nonjury trial, awarded possession to tenant in a nonpayment summary proceeding; and (2) an order, same court and judge, dated May 11, 2004, which denied its motion to set aside the final judgment; and (3) an order, same court and judge, dated June 14, 2004, which granted tenant's motion for attorneys' fees.
Final judgment (Cyril K. Bedford, J.) entered January 29, 2004, and orders, dated May 11, 2004 and June 14, 2004 (same judge) affirmed, with $25 costs.
PRESENT: McCooe, J.P., Gangel-Jacob, Schoenfeld, JJ.
The evidence, fairly interpreted, supports the trial court's determination that the landlord failed to establish the existence of improvements justifying the rent increase sought under 9 NYCRR 2522.4(a)(1) ( see Matter of Sohn v. DHCR, 258 AD2d 384; Matter of Birdoff Co. v. DHCR, 204 AD2d 630). This court previously ordered a new trial on this issue based largely upon landlord's failure "to produce any witness with personal knowledge of the work done" ( PWV Acquisition v. Toscano, 2003 NY Slip Op 51048[U] [App Term, 1st Dept]). Upon retrial, landlord failed to rectify this deficiency in proof. Even assuming that the report of tenant's architect was properly admitted into evidence pursuant to a notice to admit ( but see State of New York v. Trionix Research Laboratory, Inc., 266 AD2d 687 ), the report, reflecting a post-renovation evaluation, provided no direct evidence of the work which was actually done. Moreover, the trial record contains no testimony or photographic evidence documenting the condition of the premises prior to the undertaking of any work. Since the record provides no basis for comparison and distinguishing repairs from improvements ( see Matter of Linden v. DHCR, 217 AD2d 407), the court properly dismissed the petition and awarded attorneys' fees to tenant as the prevailing party (RPL § 234).
We have considered landlord's remaining claims and finding them unavailing.
This constitutes the decision and order of the court.