780 P.P. Associates v. State of New York Division of Housing & Community Renewal

11 A.D.3d 392, 783 N.Y.S.2d 559, 2004 N.Y. App. Div. LEXIS 12477

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 26, 2004
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered June 20, 2003, which denied the petition brought pursuant to CPLR article 78 and dismissed this proceeding seeking to annul an administrative determination that an initial registration form had not been served, thus rendering the tenant’s fair market rent appeal timely, unanimously affirmed, without costs.

Contrary to the petition, respondent based its determination on more than a mere denial of receipt of the registration form, citing a myriad of credibility issues. The crediting of the tenant’s testimony is one ruling that is largely unreviewable by this Court, which is “disadvantaged in such matters because [our] review is confined to a lifeless record” (Matter of Berenhaus v Ward, 70 NY2d 436, 443 [1987]). Since “reasonable men might differ as to whether the testimony of one witness should be accepted or the testimony of another witness be rejected,” the responsibility for weighing the evidence and making a choice rests with the trier of fact (Matter of Stork Rest. v Boland, 282 NY 256, 267 [1940]). Concur—Tom, J.P., Sullivan, Lerner, Gonzalez and Catterson, JJ.