
    [852 NYS2d 570]
    3657 Realty Co., LLC, Respondent, v Ida Mae Jones, Appellant.
    Supreme Court, Appellate Term, First Department,
    December 19, 2007
    
      APPEARANCES OF COUNSEL
    
      José Luis Torres, New York City, for appellant. Horing Welikson & Rosen, P.C., Williston Park (Richard T. Walsh of counsel), for respondent.
   OPINION OF THE COURT

Per Curiam.

Final judgment, entered February 23, 2006, affirmed, with $25 costs.

The trial court’s determination that tenant does not primarily reside in the subject Manhattan apartment represents a fair interpretation of the evidence and is not disturbed. The documentary evidence, including tax returns, utility bills and savings account statements, established that tenant principally resided in a house owned by her in Savannah, Georgia. The duly credited testimony of landlord’s witnesses demonstrated that tenant, with the assistance of building staff, moved most of her furnishings out of the subject apartment in 2002; that tenant rarely has been seen at the premises since that time; and that the apartment has since been occupied by two of tenant’s relatives, a nephew and cousin. Tenant presented little documentary indicia of residency in New York and the testimony of her witnesses was lacking in specifics as to tenant’s presence in the subject building. On this record, no basis exists to disturb the trial court’s findings of fact (see Claridge Gardens v Menotti, 160 AD2d 544 [1990] ). “[D]ue regard must be given to the decision of the Trial Judge who was in a position to assess the evidence and the credibility of the witnesses” (300 E. 34th St. Co. v Habeeb, 248 AD2d 50, 55 [1997], quoting Universal Leasing Servs. v Flushing Hae Kwan Rest., 169 AD2d 829, 830 [1991] ).

The procedural issue injected into this case by the dissent— involving the timeliness of the trial court’s action in drawing a negative inference against tenant based upon her failure to call her nephew and cousin as witnesses — is not properly before us, tenant having failed to respond on the record to landlord’s request that such an inference be drawn at nisi prius or to raise the issue, directly or by implication, as a ground for reversal on appeal.

Moreover, on the present record, and given the strength of landlord’s nonprimary residence claim, we cannot conclude that any procedural error was so prejudicial to tenant’s cause as to warrant a new trial. From a substantive standpoint, the propriety of the trial court’s discretionary determination to draw an adverse inference is firmly supported in the case law (see e.g. Carmine Ltd. v Gordon, 41 AD3d 196, 199 [2007]) and, indeed, is not challenged by the dissent. We note in this regard that the two uncalled witnesses occupied the apartment, had knowledge of the material facts, would be expected to testify favorably to the tenant and were present at the trial. In effect, they were the equivalent of parties to the proceeding, as they were named as “John Doe” respondents. They had a strong interest in the outcome of the case, since their occupancy of the apartment would be directly affected by a judgment against the tenant (see Crowder v Wells & Wells Equip., Inc., 11 AD3d 360 [2004]).

McKeon, EJ. (dissenting).

Ida Mae Jones was an 84-year-old, nearly blind tenant of a Manhattan rent-controlled apartment for more than 35 years when landlord commenced this holdover proceeding seeking her eviction on alternative theories of illegal sublet and nonprimary residence.

At trial, Ms. Jones admitted that she spent several months each year in Georgia, caring for her former husband who was ill. However, she was steadfast in her position that she spent the majority of her time in New York. She also admitted that a nephew and a cousin lived in the subject apartment, although she denied that they paid rent.

After the close of all the evidence, landlord’s counsel, during closing argument, requested a missing witness charge based upon tenant’s failure to call her nephew and cousin as witnesses. A fair reading of the record supports the conclusion that the request was principally directed at the illegal sublet claim although reference is made by landlord’s lawyer to what “can be a nonprimary residence issue.”

The trial court did not rule on the request for a missing witness inference on the record, and tenant never called her nephew and cousin as witnesses. Thereafter, in its decision/ order, the trial court indicated that it had drawn an unfavorable inference against tenant on the primary residence claim, having concluded that landlord had failed to meet its burden of proof on the illegal sublet claim.

The court should have advised tenant during trial that it was going to draw an adverse inference on the primary residence claim due to tenant’s failure to call her relatives as witnesses. Before an adverse inference may be drawn based on a witness’ absence, the law requires that the court rule on the issue on a timely manner to enable the parties to “tailor their trial strategy to avoid substantial possibilities of surprise” (People v Gonzalez, 68 NY2d 424, 428 [1986] [internal quotation marks omitted]). The trial court’s failure to rule on a timely manner denied tenant the opportunity to adjust her trial strategy (see Spoto v S.D.R. Constr., 226 AD2d 202, 204 [1996]) or to explain her failure to call the two witnesses (see People v Magett, 196 AD2d 62 [1994]).

At the time of landlord’s request for a missing witness inference, the illegal sublet claim had not been dismissed. Without having the benefit of the trial court’s thinking, tenant could have reasonably believed that the testimony of her relatives was cumulative, particularly in light of the testimony of her neighbors confirming her presence at the apartment and the documentary evidence, i.e., tax returns and voting records, which substantiated her position on primary residence. Moreover, landlord called tenant as its own witness. During her testimony, Ms. Jones denied that her relatives paid her rent to live in the apartment. In the absence of documentary proof belying Ms. Jones’ testimony, it was incumbent upon landlord, if it wished to pursue the illegal sublet claim, to call the cousin or the nephew on its own case. Having failed to do so, landlord was not entitled to an adverse inference for tenant’s failure to do that which landlord had to do to meet its own burden of proof on illegal sublet.

The court’s untimely ruling was all the more prejudicial since the testimony of tenant’s witnesses was found to be “not a great help” and “less than convincing,” based on the witnesses’ inability to remember specifics. Tenant’s witnesses were her contemporaries, individuals of advanced age whose ability to recall and articulate did not satisfy the trial court. Under these circumstances, it became “imperative that all discussions regarding [the adverse inference] be clearly set forth on the record so that the respective positions of each party [could be] readily discernible” (People v Gonzalez, 68 NY2d at 428). The adverse inference drawn by the trial court, without any discussion on the record or forewarning to tenant, was clearly prejudicial and denied her a fair trial.

I respectfully dissent, and would reverse the possessory judgment in landlord’s favor and order a new trial.

McCooe and Davis, JJ., concur; McKeon, EJ., dissents in a separate opinion.  