318 EAST 93, LLC v. WARD

In this summary holdover proceeding to recover possession of a rent-controlled apartment on the ground that it had not been occupied as a primary residence, Civil Court determined, after a nonjury trial, that petitioner landlord failed to meet its burden to establish non-primary residency by a preponderance of the evidence. We see no basis to disturb Civil Court's resolution of the issues of fact and credibility raised at the trial of this matter since it is far from "obvious that the court's conclusion could not be reached under any fair interpretation of the evidence" (Claridge Gardens, Inc. v. Menotti, 160 A.D.2d 544, 545). The court, sitting as fact-finder, made a specific finding that there was evidence to support the respective positions of each party. When the trial evidence weighs so evenly as not to preponderate on either side, the court must decide against the party with the burden (D'Amico v. Manufacturer's Hanover Trust Co., 173 A.D.2d 263, 265).

Civil Court's refusal to draw a negative inference based upon respondent tenant's failure to call her daughter at trial was a proper exercise of discretion. The inference that a trier of fact draws from a missing witness charge is not mandatory, but merely permissive (see,People v. Gonzalez, 68 N.Y.2d 424). Here, it was within the province of the court, sitting as fact-finder, to determine whether to draw a negative inference from respondent tenant's failure to produce her daughter as a witness (see, People v. Paylor, 121 A.D.2d 891, affd 70 N.Y.2d 146), in light of the testimony concerning tenant's relationship with her daughter.

THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.