RSP 86 Prop. LLC v Sylvester

[*1] RSP 86 Prop. LLC v Sylvester 2015 NY Slip Op 50539(U) Decided on April 16, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 16, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Ling-Cohan, J.
570038/15

RSP 86 Property LLC, Petitioner-Landlord-Appellant,

against

Martin Sylvester, Respondent-Tenant-Respondent, -and- "John Doe" and/or "Jane Doe," Respondents.

Landlord appeals from a final judgment of the Civil Court of the City of New York, New York County (Sabrina B. Kraus, J.), entered on or about May 16, 2014, after a nonjury trial, in favor of tenant dismissing the petition in a holdover summary proceeding.

Per Curiam.

Final judgment (Sabrina B. Kraus, J.), entered on or about May 16, 2014, affirmed, with $25 costs, for the reasons stated by Sabrina B. Kraus, J. at Civil Court.

We affirm the trial court's fact-laden determination that landlord failed to meet its burden to establish nonprimary residence, and find no basis to disturb the court's resolution of the issues of fact and credibility raised at trial. The testimonial and documentary evidence, fairly interpreted, supports a finding that the long-term (40-year) rent stabilized tenant maintained a substantial, physical nexus to the subject Manhattan apartment, which is reflected on most of his important documents, such as his tax returns, driver's license, voter registration, as well as bank and credit card statements. In addition, tenant received his mail here; never sublet the premises; and received regular medical treatment in New York City. That the now 89-year old, retired tenant spends weekend and summer months at his East Hampton house, and winter months in Florida, does not, on this record, compel a finding of nonprimary residence (see 310 E. 23rd LLC v Colvin, 41 AD3d 149 [2007]; see also Glenbriar Co. v Lipsman, 11 AD3d 352 [2004], affd 5 NY3d 388 [2005]). As the trial court expressly found, "[tenant] has maintained the subject premisesas his primary residence, notwithstanding his seasonal use of homes in Long Island and Florida."

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur

Decision Date: April 16, 2015