Forty Central Park South, Inc. v. Kiss

40 A.D.3d 236, 835 N.Y.S.2d 132

Opinion

Order of the Appellate Term of the Supreme Court of the State of New York, First Department, entered on or about October 20, 2005, which affirmed an order of the Civil Court, New York County (Shlomo Hagler, J.), dated June 4, 2003, directing a traverse, and an order, same court (Peter Wendt, J.), dated February 22, 2005, sustaining the traverse and dismissing the proceeding, unanimously affirmed, without costs.

The unverified answer was not a nullity, inasmuch as it could have been oral (RPAPL 743), and the landlord did not assert that it provided notice regarding the lack of verification (CPLR 3022). The mailing presumption notwithstanding (see Engel v Lichterman, 62 NY2d 943 [1984]), the traverse court properly made a credibility-based determination that the tenant’s testimony denying that she received a mailed copy of the notice of petition and petition rebutted the affidavit of service, the court aptly noting the absence of the mailing certificates and that the landlord had failed to call a witness under its control who might have testified in its favor (see Noce v Kaufman, 2 NY2d 347, 353 [1957]). A determination of who is entitled to “prevailing party” status would be premature in the absence of any determination or even a motion or application for a hearing on the issue; we note, however, that the proceeding had been dismissed without prejudice. Concur—Marlow, J.P, Nardelli, Gonzalez, Sweeny and Malone, JJ.