First Ave. Equities LLC v Doron

[*1] First Ave. Equities LLC v Doron 2014 NY Slip Op 24194 Decided on July 16, 2014 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Miscellaneous Reports.

Decided on July 16, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., Ling-Cohan, JJ.
14-181/182

First Avenue Equities LLC, Petitioner-Landlord-Respondent, -

against

Yael Doron, Respondent-Tenant-Appellant, -and- James Bradford Winslow, "John Doe" and "Jane Doe", Respondent-Undertenants.

Tenant appeals from (1) a final judgment of the Civil Court of the City of New York, New York County (Jack Stoller, J.), entered June 3, 2013, after a nonjury trial, awarding possession to landlord in a holdover summary proceeding, and (2) an order (same court and Judge), dated July 1, 2013, which, inter alia, stayed execution of the warrant through July 31, 2013.

Per Curiam.

Final judgment (Jack Stoller, J.), entered June 3, 2013, affirmed, without costs. Appeal from order (same court and Judge), dated July 1, 2013, dismissed, without costs, as academic.

Following a trial spanning four court days, the trial court issued a possessory judgment in landlord's favor upon a finding that tenant did not primarily reside in the stabilized Manhattan apartment here at issue. We find unavailing tenant's contention that the court's decision and underlying findings of fact are against the weight of the evidence. On an appeal from a judgment after a bench trial, this court is authorized to grant the judgment warranted by the facts, "taking into account in a close case the fact that the trial judge has the advantage of seeing the witnesses'" (Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983], quoting York Mtge. Corp. v Clotar Constr. Corp., 254 NY 129, 133-134 [1930]). However, "the decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence, especially when the findings of fact rest in large measure on considerations relating to the credibility of witnesses" (Claridge Gardens, Inc. v Menotti, 160 AD2d 433, 544-545 [1990]). Here, the record [*2]as a whole — including the stipulated fact that tenant, a dual American and Israeli citizen, lived in Israel for all but 54 days during the three and a half year period (January 2007 through June 2010) preceding the effective date of the underlying termination notice, and was shown to have unlawfully and surreptitiously sublet the Manhattan apartment during her extended absence — supports the court's detailed findings of nonprimary residency.

Granted, tenant's relocation to Israel may have been laudably motivated by her interest in providing needed "specialized" therapeutic and educational services to her minor autistic son. However, as the trial court noted in its written decision, tenant failed to adequately explain why she and her son did not resume occupancy of the Manhattan apartment until June 2010, within weeks of landlord's service of its Golub notice, when tenant's own expert witness testified that, as early as August 2007, tenant's son would have been eligible to apply for extensive public special education services in New York City, of the type that he in fact began receiving soon after the family's return.

In all, we cannot say that the evidence so preponderated in favor of tenant that the verdict could not have been reached on any fair interpretation of the evidence (see generally Lolik v Big v Supermarkets, 86 NY2d 744, 746 [1995]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: July 16, 2014