299 ASSOCIATES v. MERTENS (2021)

Amended final judgment (Timmie Erin Elsner, J.), entered March 19, 2021, affirmed, with $25 costs. Appeals from “decision and order” (Timmie Erin Elsner, J.), entered on or about April 23, 2020, and final judgment (Timmie Erin Elsner, J.), entered March 19, 2021, dismissed, without costs, as subsumed in and superseded by, respectively, the appeal from the amended final judgment.

We agree with the trial court that respondent John Mertens, the son of the rent stabilized tenant, failed to meet his affirmative obligation to establish succession rights to the subject apartment (see Rent Stabilization Code [9 NYCRR] § 2523.5[b][1]; 318 E. 93 v Ward, 276 AD2d 277 [2000]). Our review of the record shows no reason to disturb the fact and credibility determinations of the trial Judge, who was in the best position to assess the value of the witnesses’ testimony (see Claridge Gardens v Menotti, 160 AD2d 544, 544—545 [1990]). While the absence of documentary evidence is not fatal to respondent's succession claim (see 300 E. 34th St. Co. v Habeeb, 248 AD2d 50, 55 [1997]), the testimony of respondent, which the trial court found to “lack[ ] credibility,” was insufficient to overcome the complete paucity of documentary evidence connecting respondent to the apartment for actual living purposes for the two years prior to tenant's death (see K & L Chan Realty Inc. v Lee, 67 Misc 3d 130[A], 2020 NY Slip Op 50415[U] [App Term, 1st Dept 2020]). Tenant's efforts to “explain away” some of the facts and circumstances “merely raise[d] questions of fact and credibility for the trial court” (409-411 Sixth St. LLC v Mogi, 112 AD3d 558, 559 [2013]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Per Curiam.

All concur.