422 E. 9th LLC v Patton

[*1] 422 E. 9th LLC v Patton 2010 NY Slip Op 52027(U) [29 Misc 3d 137(A)] Decided on November 24, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 24, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ
570377/09.

422 East 9th LLC, Petitioner-Landlord-

against

Julie Patton, Respondent-Tenant-Respondent, -and- "John Doe" and/or "Jane Doe," Respondents-Undertenants.

Landlord appeals from a final judgment of the Civil Court of the City of New York, New York County (Gary F. Marton, J.), entered on or about October 9, 2009, in favor of tenant dismissing the petition in a holdover summary proceeding.

Per Curiam.

Final judgment (Gary F. Marton, J.), entered on or about October 9, 2009, affirmed, with $25 costs.

The evidence adduced at trial, fairly interpreted, supports the court's finding that landlord failed to establish that tenant did not primarily reside in the subject apartment premises. Notably, tenant filed taxes and voted in New York; most of her important documents, such as W-2 forms, banking records and social security statements, reflect that tenant primarily resided in the New York City apartment; and tenant was an adjunct faculty member at Cooper Union, regularly worshiped at a church located near the apartment, and regularly participated in artistic endeavors in Manhattan. This evidence demonstrated that tenant had a substantial physical nexus to the subject apartment premises, and supports the court's conclusion that the nonprimary residence holdover petition should be dismissed. Although tenant readily acknowledged that she spent substantial time in Cleveland, Ohio caring for her (now deceased) father who suffered from Alzheimer's disease and her elderly, chronically ill mother, as well as to oversee an investment property previously managed by her father, these facts do not, on this record, compel a finding of nonprimary residence (see Lance Realty Co. v Fefferma, 5 Misc 3d 134[A], 2004 NY Slip Op 51479[U] [2004]; Patchin Place, LLC v Fox, 3 Misc 3d 127[A], 2004 NY Slip Op 50327[U] [2004]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 24, 2010