Downtown Manhattan C.D.C. v Barone

[*1] Downtown Manhattan C.D.C. v Barone 2007 NY Slip Op 51843(U) [17 Misc 3d 126(A)] Decided on October 2, 2007 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 2, 2007
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McCOOE, J.P., SCHOENFELD, HEITLER, JJ
570741/06.

Downtown Manhattan C.D.C., Petitioner-Appellant,

against

Michelle Barone, Respondent-Respondent.

Landlord appeals from a final judgment of the Civil Court of the City of New York, New York County (Sheldon J. Halprin, J.), entered on or about December 16, 2005, after a nonjury trial, which dismissed the petition in a holdover summary proceeding.

Per Curiam.

Final judgment (Sheldon J. Halprin, J.), entered on or about December 16, 2005, affirmed, with $25 costs.

The trial court's credibility-based determination that respondent, the granddaughter of the deceased rent controlled tenant, met her affirmative obligation to establish succession rights to the rent controlled tenancy (see 9 NYCRR § 2204.6[d]) represents a fair interpretation of the evidence (see 318 E. 93 v Ward, 276 AD2d 277 [2006]). The testimonial and documentary evidence produced
at trial supports a finding that respondent had long-term occupancy ties to the subject apartment and, notwithstanding her excused educational absence, that she primarily resided there for the requisite two-year period immediately prior to her grandfather's death in January 2001. Inasmuch as respondent reached the age of majority three years prior to her grandfather's death, petitioner may not rely upon the presumption that the residence of a child is the residence of the parent to support its claim that respondent did not reside with her grandfather (cf. Quiala v Laufer, 180 AD2d 31 [1992]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 02, 2007