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LENOXVILLE ASSOCIATES, L.P., pet-res, v. LOUISA DOWNS, resap

12-356. LENOXVILLE ASSOCIATES, L.P., pet-res, v. LOUISA DOWNS, resap. — Final judgment (Cheryl J. Gonzales, J.), entered November 18, 2011, reversed, without costs, and new trial ordered.

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12-356. LENOXVILLE ASSOCIATES, L.P., pet-res, v. LOUISA DOWNS, resap. — Final judgment (Cheryl J. Gonzales, J.), entered November 18, 2011, reversed, without costs, and new trial ordered.

Upon the trial of this licensee holdover proceeding, the court rejected the pro se respondentappellant’s claimed entitlement to succeed to her deceased grandmother’s project-based section 8 tenancy and awarded petitioner a possessory judgment. The court’s resolution of the matter appears to have been founded on inconsistent determinations, with the court in its written decision finding that appellant “credibly testified that she has resided in the apartment since April 2007″ — approximately 28 months before the tenant’s death — but going on to conclude that appellant “failed to establish by a preponderance of the evidence that she occupied the apartment with [the tenant] for the requisite period.” To the extent the court’s written decision, and the seemingly contradictory findings contained therein, can be read to reflect a view that appellant’s sparse documentary submission was insufficient to support her succession claim, we note that a paucity of documentary evidence is not necessarily fatal to such a claim where, as the court itself acknowledged was the case here, credible testimonial evidence is presented at trial by or on behalf of a would-be successor (see 300 E. 34th St. Co. v. Habeeb, 248 AD2d 50, 55 [1997]; see also 23 Jones St. Assocs. v. Keebler-Beretta, 284 AD2d 109 [2001]). In this posture, and since it appears that additional documents bearing favorably on appellant’s succession claim may exist but were unavailable at the time of trial, fairness dictates that the matter be tried anew. In directing a new trial, we reach no other issue.

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