Appellate Division, Acting as Second Appellate Court, Used Wrong Standard of Review

The Court of Appeals reversed the appellate division in a holdover tenant proceeding because the appellate division, acting as the second appellate court, use the wrong standard of review:

We agree with the dissenting opinion that the Appellate Division applied the incorrect standard of review to the Appellate Term order.  In primary residence cases, where the Appellate Division acts as the second appellate court, “the decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court’s conclusions could not be reached under any fair interpretation of the evidence, especially when the findings of fact rest in large measure on considerations relating to the credibility of witnesses” … .The Appellate Division did not apply this standard of review to this case, instead substituting its own view of the trial evidence.  Accordingly, the case needs to be remitted to that court to apply the appropriate standard of review… . 409-411 Sixth Street, LLC v Mogi, 250, CtApp 10-10-13