9 Richardson St., LLC v. Deleon

9 Richardson St., LLC v Deleon (2020 NY Slip Op 51298(U)) [*1] 9 Richardson St., LLC v Deleon 2020 NY Slip Op 51298(U) [69 Misc 3d 137(A)] Decided on October 30, 2020 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on October 30, 2020 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : MICHELLE WESTON, J.P., DAVID ELLIOT, BERNICE D. SIEGAL, JJ 2019-715 K C 9 Richardson St., LLC, Appellant, against Carmen Deleon, Also Known as Carmen Magbata, Respondent, et al., Undertenants. Borah, Goldstein, Altschuler, Nahins & Goidel, P.C. (Paul N. Gruber of counsel), for appellant. Davis, Ndanusa, Ikhlas & Saleem (Mustapha Ndanusa of counsel), for respondent. Appeal from a final judgment of the Civil Court of the City of New York, Kings County (Eleanora Ofshtein, J.), entered November 1, 2018. The final judgment, after a nonjury trial, dismissed the petition in a holdover summary proceeding. ORDERED that the final judgment is affirmed, without costs. Landlord commenced this holdover proceeding to recover possession of a rent-stabilized apartment on the ground that tenant did not use the apartment as her primary residence as required by Rent Stabilization Code (RSC) (9 NYCRR) § 2524.4 (c), which tenant disputed in her answer. After a nonjury trial at which it was demonstrated that tenant often slept at her 75-year-old companion's apartment, the Civil Court dismissed the petition, stating that tenant and her companion "are at an age where they have chosen to live separate lives, not for the purposes of evading the rent stabilization laws, but because they are independent adults who have chosen not to combine households so that Respondent does not have to give up the only place she has called home [for] nearly 50 years." RSC (9 NYCRR) § 2524.4 (c) allows a landlord to refuse to renew a rent-stabilized [*2]tenant's lease and recover possession of the premises if it "is not occupied by the tenant . . . as his or her primary residence." "Primary residence," although left undefined by the RSC, has been judicially construed as " 'an ongoing, substantial, physical nexus with the . . . premises for actual living purposes' " (Katz Park Ave. Corp. v Jagger, 11 NY3d 314, 317 [2008], quoting Emay Props. Corp. v Norton, 136 Misc 2d 127, 129 [App Term, 1st Dept 1987]; accord 68-74 Thompson Realty, LLC v McNally, 71 AD3d 411, 412 [2010]). In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824, 826 [2008]). Tenant's trial proof established that tenant used the address of her apartment for, among other things, filing tax returns, receiving social security benefits, receiving mail, voting registration, her driver's license and vehicle registration, prescription renewal forms, telephone bills, insurance bills, and bank statements. Tenant never sublet her apartment, and kept her clothing, furniture and personal belongings there. Finally, tenant continued to attend church in her neighborhood and did not pay rent for her companion's apartment. The totality of the evidence adduced at the trial supports the trial court's conclusion that tenant was utilizing the subject apartment in an "ongoing" and "substantial" manner consistent with physically living at the subject premises (see Second 82nd Corp. v Veiders, 146 AD3d 696 [2017]; 710 Madison Ave. LLC v Hicks, 56 Misc 3d 131[A], 2017 NY Slip Op 50873[U] [App Term, 1st Dept 2017]; Hudsoncliff Bldg. Co. v Houpouridou, 22 Misc 3d 52, 53 [App Term, 1st Dept 2008]). Accordingly, the final judgment is affirmed. WESTON, J.P., ELLIOT and SIEGAL, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: October 30, 2020