GLD Realty Corp. v Williams

[*1] GLD Realty Corp. v Williams 2015 NY Slip Op 51114(U) Decided on July 28, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 28, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Shulman, JJ.
570024/15

GLD Realty Corp., Petitioner-Landlord-Appellant,

against

Robert Williams, Respondent-Tenant-Respondent.

Landlord appeals from a final judgment of the Civil Court of the City of New York, New York County (Phyllis K. Saxe, J.), entered on or about September 18, 2014, after a nonjury trial, in favor of tenant dismissing the petition in a holdover summary proceeding.

Per Curiam.

Final judgment (Phyllis K. Saxe, J.), entered on or about September 18, 2014, affirmed, with $25 costs.

On a bench trial, 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" (Claridge Gardens v Menotti, 160 AD2d 544, 545 [1990], quoted in Thoreson v Penthouse Intl., 80 NY2d 490, 495 [1992]; see also WSC Riverside Drive Owners LLC v Williams, 125 AD3d 458 [2015]). Applying that standard of review here, and considering what the trial court aptly described as the "paucity of evidence" presented by petitioner-landlord, we find no basis to disturb the court's ultimate finding that landlord "fell short" of meeting its burden of establishing, "by a preponderance of the evidence, that tenant[] did not use the [subject stabilized] apartment as a primary residence" (Glenbriar Co. v Lipsman, 5 NY3d 388, 392 [2005]). Notably absent from landlord's trial submission were many of the documents typically relied on to establish (non)primary residence, such as the tenant's income tax returns, bank statements, utility bills, driver's license or voter registration records; any persuasive trial testimony bearing on the tenant's presence in or use of the subject apartment or any other residence; or any attempt to cross-examine tenant as to his living arrangements or otherwise.

Nor is a contrary result warranted by tenant's 2005 purchase of a city-subsidized, residential condominium unit or the written assurances made by tenant in connection with that purchase to use the condominium unit as his primary residence, at least on this record, where the evidence showed and the court expressly found that there was "no other credible evidence . . . that [tenant] actually moved into the condominium unit."

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: July 28, 2015