175-177 E. Third Assoc., L.P. v Kunz

[*1] 175-177 E. Third Assoc., L.P. v Kunz 2015 NY Slip Op 50823(U) Decided on May 22, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 22, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., Ling-Cohan, JJ.
570317/15

175-177 East Third Associates, L.P. -Appellant,

against

Susan E. Kunz, Respondent-Tenant-Respondent, -and- "John Doe" and "Jane Doe," Respondents.

Landlord appeals from an order of the Civil Court of the City of New York, New York County (Cheryl J. Gonzales, J.), dated September 8, 2014, which denied its motion for summary judgment of possession in a holdover summary proceeding.

Per Curiam.

Order (Cheryl J. Gonzales, J.), dated September 8, 2014, affirmed, with $10 costs.

Summary judgment is not warranted in this nonprimary residence proceeding. Triable issues of fact exist as to the nature and extent of the long-term (20-year) tenant's presence at and usage of the subject East 3rd Street, Manhattan apartment and the successive Grand Army Plaza condominium apartments purchased by tenant's (now former) boyfriend during their 20-month "trial cohabitation" in Brooklyn. While tenant's occupancy in Brooklyn during that period raises factual questions as to the situs of her primary residence, it does not, on this record, finally resolve the issue. Material issues of fact as to tenant's substantial physical nexus to the Manhattan apartment are raised by her driver's license, income tax returns, and voting and automobile registrations referencing that apartment; as well her affidavit in opposition, specifying, inter alia, that the apartment has been her primary residence since 1993; that during her temporary absence, most of her furniture and possessions remained in the apartment, where she often returned to spend time; and that she ultimately resumed occupancy in the apartment after the break-up with her boyfriend, some five months prior to landlord's service of the Golub notice. The conflict as to whether the subject apartment is actually being used as tenant's primary residence should be resolved at trial, and not on summary judgment (see West 15th St. Assoc. v Sassoonian, 156 AD2d 137 [1989]; Coronet Props. Co. v Adelman, 112 AD2d 100 [1985]; see also Extell Belnord LLC v Uppman, 113 AD3d 1, 12 [2013]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: May 22, 2015