310 E. 23rd LLC v Colvin

310 E. 23rd LLC v Colvin 2007 NY Slip Op 04883 [41 AD3d 149] June 7, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 15, 2007

310 East 23rd LLC, Appellant,
v
Melba J. Colvin, Respondent, et al., Respondents.

—[*1] Belkin Burden Wenig & Goldman, LLP, New York (Magda L. Cruz of counsel), for appellant.

Benjamin R. Kaplan, New York, for Melba J. Colvin, respondent.

Order of the Appellate Term of the Supreme Court of the State of New York, First Department, entered June 7, 2006, which affirmed a judgment of the Civil Court, New York County (Jerald R. Klein, J.), entered on or about May 26, 2005, after a nonjury trial in a holdover proceeding, in favor of respondent tenant and against petitioner landlord, unanimously affirmed, without costs.

A fair interpretation of the evidence supports the findings that the subject apartment was at all relevant times respondent's primary residence and that the house she owns in upstate New York is a second residence that she uses on weekends, holidays and vacations (see Glenbriar Co. v Lipsman, 5 NY3d 388, 392 [2005]; Thoreson v Penthouse Intl., 80 NY2d 490, 495 [1992]). Such evidence includes respondent's testimony showing a substantial physical nexus to the apartment (Glenbriar Co. at 393), and explaining, inter alia, why she specified the upstate residence as her home address in certain tax-related documents (see 23 Jones St. Assoc. v Keebler-Beretta, 284 AD2d 109, 109 [2001] [documentary evidence "is not essential" in determining primary residence and "does not necessarily preponderate over inconsistent testimonial evidence"]; see also Glenbriar Co., 11 AD3d 352, 353 [2004], affd on other grounds 5 NY3d 388 [2005], supra [listing of Florida address as primary residence in tax returns not fatal to claim of primary residence in New York]). Indeed, respondent's New York State tax returns, relied on by petitioner insofar as they specify the upstate residence as respondent's home address, also [*2]specify that respondent is a full-year resident of New York City, and show that she always paid New York City income tax on all of her income. Concur—Andrias, J.P., Gonzalez, Sweeny, McGuire and Malone, JJ. [See 12 Misc 3d 129(A), 2006 NY Slip Op 51032(U) (2006).]