184-188 Claremont Invs., LLC v Nelson

[*1] 184-188 Claremont Invs., LLC v Nelson 2015 NY Slip Op 50235(U) Decided on March 2, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 2, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ.
570491/13

184-188 Claremont Investors, LLC Petitioner-Landlord-Respondent, -

against

Austin Ira Nelson, Respondent-Tenant-Appellant.

Tenant, as limited by his briefs, appeals from (1) a final judgment of the Civil Court of the City of New York, New York County (Lynn R. Kotler, J.), entered May 19, 2014, after a jury trial, which awarded possession to landlord in a holdover summary proceeding, and (2) so much of an order (same court and Judge), dated May 12, 2014, as denied his motion for judgment notwithstanding the verdict or for a new trial.

Per curiam.

Final judgment (Lynn R. Kotler, J. and jury), entered May 19, 2014, affirmed, with $25 costs. Appeal from order (Lynn R. Kotler, J.), dated March 19, 2014, dismissed, without costs, as subsumed in the appeal from the final judgment. The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the final judgment (see CPLR 5501[a][1]).

The jury's finding that tenant did not primarily reside at the stabilized Manhattan apartment here at issue comports with the weight of the trial evidence, which showed that tenant was absent from the apartment for no less than nine months in 2009, eight months in 2010, and the first six months of 2011 (returning shortly before landlord's commencement of this proceeding), during which time he lived predominantly in Argentina and permitted others to occupy the premises in his absence. That tenant may have been "working on . . . and performing" music or otherwise employed during his lengthy stays in Buenos Aires does not serve to excuse his prolonged physical absences from the subject apartment, or so the jury reasonably could find. Nor was landlord required to prove that tenant had a specific alternative primary residence elsewhere (see TOA Constr. Co. v Tsitsires, 54 AD3d 109 [2008]), particularly "where as here, tenant is shown to spend considerable amounts of time at several different [locales]" (Emel Realty Corp. v Carey, 188 Misc 2d 280 [2001], affd 288 AD2d 163 [2001]).

Nor does the record disclose any evidentiary error warranting reversal. In the particular circumstances here presented, the court providently exercised its discretion in limiting the temporal scope of the evidence to the two-year period prior to the expiration of tenant's most recent lease (see TOA Constr. Co., Inc. v Tsitsires, 54 AD3d at 114-116; 45th St. Assoc. v Spence, [*2]180 Misc 2d 93 [1993]; cf. 615 Realty Co. v Mikeska, 75 NY2d 987 [1990]), especially given the absence of any offer of proof by tenant as to the substance or relevance of any prior events (see generally Brown v Psycho Inc., 213 AD2d 271 [1995]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: March 02, 2015