Golden Mtn. Realty Inc. v Severino

[*1] Golden Mtn. Realty Inc. v Severino 2015 NY Slip Op 50623(U) Decided on April 27, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 27, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Schoenfeld, Ling-Cohan, JJ.
570988/12

Golden Mountain Realty Inc., Petitioner-Appellant,

against

Abraham Severino, Respondent-Respondent.

Petitioner 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 August 23, 2013, after a nonjury trial, which dismissed the petition in a holdover summary proceeding.

Per Curiam.

Final judgment (Sabrina B. Kraus, J.), entered on or about August 23, 2013, affirmed, with $25 costs.

The trial court's fact-based determination that respondent met his affirmative obligation to establish succession rights to the subject rent controlled tenancy (see New York City Rent and Eviction Regulations [9 NYCRR] § 2204.6[d]), represents a fair interpretation of the evidence (see 318 E. 93, LLC v Ward, 276 AD2d 277 [2000]). The evidence produced at trial supports a finding that respondent moved into the apartment in 2005, following his divorce, in order to reside with his father, Manuel, and that respondent resided there as a primary resident for the requisite two-year period immediately prior to Manuel's death in 2011 (see Rent and Eviction Regulations [9 NYCRR] § 2200.2[o]). The trial court was warranted in crediting the testimony of respondent's witnesses as to the relevant periods of occupancy, specifically noting petitioner's failure to contradict the testimony (see 300 East 34th St. Co. v Habeeb, 248 AD2d 50 [1997]; Morton St. Assoc. v Volpe, 19 Misc 3d 126[A], 2008 NY Slip Op 50483[U] [App Term, 1st Dept 2008]).

Insofar as petitioner now claims that Manuel was not the tenant of record, the record supports the court's finding that Manuel resided in the apartment with his wife, Antonia, the original statutory tenant, from the inception of the tenancy until Antonia's 1999 death (see New York City Rent and Eviction Regulations [9 NYCRR] §§ 2200.2[o]; 9 NYCRR 2204.6[d]; Matter of Herzog v Joy, 74 AD2d 372 [1980], affd 53 NY2d 821 [1981]). Nor was it necessary, as petitioner claims, for Manuel to have asserted succession rights following Antonia's death. "[T]here is no provision in the Rent and Eviction Regulations setting forth any guidelines or [*2]mandates involving a successor tenant as to what action an owner, or for that matter a tenant, must take with respect to changing the identification information pertaining to the tenancy. A family member who qualifies merely succeeds to the decedent tenant's rights if that is his or her choice" (Matter of Klein v New York State Div. of Hous. & Community Renewal, 17 AD3d 186, 188-189 [2005]; see also Matter of Duell v Condon, 84 NY2d 773 [1995]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: April 27, 2015