Sharp v. Norwood ( 1996 )

Mázzarelli, J. (concurring).

Both the majority and the dissent agree that the chronic late payment of rent may constitute a nuisance warranting eviction, if not adequately explained (Greene v Stone, 160 AD2d 367). What divides the Court here is not what legal standard applies, but whether that governing legal standard was satisfied in this case. The trial court found that the landlord failed to establish a nuisance because the landlord failed to adequately establish the chronicity of tenant’s lateness and that, in any event, the tenant had provided an adequate explanation for her late payments. A majority of the Appellate Term agreed.

In my view, the question presented on this appeal, which is before us by permission to appeal granted by the Appellate Term, when properly framed, is one which is a fact-laden determination. Thus, in reviewing the record, we must be careful not to jettison too quickly the factual findings of the trial court, which from its unique perspective, had the best opportunity to assess the credibility of the various witnesses. Moreover, in reviewing the Appellate Term’s affirmance of the trial court’s decision, it would be imprudent to ignore that court’s considerable expertise in reviewing such matters and in determining whether there was sufficient evidence to satisfy the standard that that court itself articulated in an earlier appeal in this matter. Suffice it to say that there is an ample basis in the record to support the trial court’s factual findings, and when those findings are accorded the deference due them, it cannot be said that the landlord met its burden of proving a nuisance. Accordingly, the order of the Appellate Term should be affirmed.