IN RE: 780 P.P. ASSOCIATES

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Supreme Court, Appellate Division, First Department, New York.

IN RE: 780 P.P. ASSOCIATES, Petitioner-Appellant, v. STATE OF NEW YORK DIVISION OF HOUSING AND COMMUNITY RENEWAL, Respondent-Respondent.

Decided: October 26, 2004

TOM, J.P., SULLIVAN, LERNER, GONZALEZ, CATTERSON, JJ. Ingram Yuzek Gainen Carroll & Bertolotti, LLP, New York (Cory L. Weiss of counsel), for appellant. Marcia P. Hirsch, New York (Jeffrey G. Kelly of counsel), for respondent.

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 N.Y.2d 436, 443, 522 N.Y.S.2d 478, 517 N.E.2d 193 [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 N.Y. 256, 267, 26 N.E.2d 247 [1940] ).