Opinion
No. 14–078.
2014-02-28
ROXBOROUGH APARTMENTS CORP., Petitioner–Landlord–Appellant, v. Shira KALISH, Respondent–Tenant–Respondent.
Tenant, as successor to the rent controlled tenancy of her grandfather and as prevailing party in the underlying 2008 holdover “summary” proceeding, demonstrated entitlement to recover attorney's fees pursuant to paragraph 17 of the initial 1943 lease agreement between her grandfather and the predecessor landlord. Contrary to landlord's sole appellate argument, a copy of the fully executed lease agreement was properly admitted as secondary evidence, based on tenant's credited showing that she made a diligent, albeit unsuccessful search for the original lease, that she did not “procure[ ] its loss or destruction in bad faith,” and that the copy accurately reflected the original document (Schozer v. William Penn Life Ins. Co. of NY, 84 N.Y.2d 639, 644 [1994];see Posson v. Przestrzelski, 111 AD3d 1235 [2013];1997 Marcy Ave, Inc. v. Clinksdale, 16 Misc.3d 78, 79–80 [2007] ). We note, significantly, tenant's production of a registration statement for the subject apartment, filed with the United States Office of Price Administration on December 15, 1943, whose terms, including those relating to the tenancy's commencement date and collectible rent, closely conform to the terms contained in the lease copy presented by tenant, and her elicitation of unrebutted opinion testimony from a handwriting expert as to the genuineness of the prior landlord's signature on the lease copy. THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.