284 Parkway Assoc. v. Despinosse

284 Parkway Assoc. v Despinosse (2021 NY Slip Op 51032(U)) [*1] 284 Parkway Assoc. v Despinosse 2021 NY Slip Op 51032(U) [73 Misc 3d 135(A)] Decided on October 29, 2021 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 29, 2021 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, WAVNY TOUSSAINT, JJ 2019-1384 K C 284 Parkway Associates, Respondent, against Nicole Despinosse, Appellant, Jerry Despinosse, Jr., Dominic Despinosse, John Doe and Jane Doe, Undertenants. Brooklyn Legal Services (Logan Schiff of counsel), for appellant. Claro, PLLC (Joseph M. Claro of counsel), for respondent. Appeal from a final judgment of the Civil Court of the City of New York, Kings County (Hanna Cohen, J.), entered July 22, 2019. The final judgment, after a nonjury trial, awarded landlord possession 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). After a nonjury trial, the Civil Court awarded possession to landlord, finding that tenant did not have a substantial physical nexus to the apartment. Pursuant to RSC § 2524.4 (c), a tenant must occupy a rent-stabilized apartment as a primary residence. In a nonprimary-residence holdover proceeding, the landlord has the burden of showing, by a preponderance of the evidence, that the tenant did not use the premises as a primary residence (see Glenbriar Co. v Lipsman, 5 NY3d 388 [2005]). "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]; see also 68-74 Thompson Realty, LLC v McNally, 71 AD3d 411, 412 [2010]). A tenant can rebut a landlord's prima facie showing by demonstrating an ongoing, substantial physical nexus with the premises for purposes of actual living (see Glenbriar Co. v Lipsman, 5 NY3d at 392-393; Draper v Georgia Props., 94 NY2d 809, 811 [1999]; Emel Realty [*2]Corp. v Carey, 288 AD2d 163 [2001]). Here, each side presented substantial testimonial evidence in support of their positions, as well as some documentary evidence. The Civil Court determined that the testimony of landlord's witnesses was more credible than the testimony of tenant and her witnesses. The Civil Court concluded that tenant had failed to rebut landlord's prima facie showing that tenant did not use the subject premises as a primary residence. Upon review (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]), we find that the conclusions of the court are supported by the record. Consequently, we do not disturb the court's factual findings (see Hyatt Ave. Assoc., LLC v Rahman, 49 Misc 3d 24, 28-29 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Kalikow Family Partnership, LP v Seidemann, 48 Misc 3d 134[A], 2015 NY Slip Op 51080[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Accordingly, the final judgment is affirmed. ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: October 29, 2021