145 E. 16th St., LLC v Spencer

[*1] 145 E. 16th St., LLC v Spencer 2015 NY Slip Op 51392(U) Decided on October 1, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 1, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., Ling-Cohan, JJ.
570121/12

145 East 16th Street, LLC, Petitioner-Landlord-Appellant, -

against

Lynore Spencer a/k/a Lenore Spencer, Respondent-Tenant-Respondent, -and- Dana Spencer, David Gerstenhaber, "John Doe," and "Jane Doe," Respondents-Undertenants- Respondents.

Landlord appeals from an order of the Civil Court of the City of New York, New York County (Cheryl J. Gonzales, J.), dated May 4, 2015, which dismissed the petition in a holdover summary proceeding at the close of landlord's case.

Per Curiam.

Order (Cheryl J. Gonzales, J.), dated May 4, 2015, reversed, with $10 costs, tenant's dismissal motion denied, petition reinstated, and matter remanded for a new trial.

A motion for a directed verdict pursuant to CPLR 4401 should not be granted unless there is no rational process by which the fact-finder could base a finding in favor of the nonmoving party (see Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]). In assessing the motion, the court must afford the party opposing the motion every inference that may be properly drawn from the evidence presented, and the evidence must be viewed in the light most favorable to the nonmoving party (Id.). Applying these principles, we conclude that Civil Court erred in dismissing this nonprimary residence proceeding at the close of landlord's case because landlord met its initial burden of establishing that tenant did not use the stabilized apartment as her primary residence (see Glenbriar Co. v Lipsman, 5 NY3d 388 [2005]). Landlord presented proof, including tenant's deposition testimony as well as tenant's admission by stipulated facts at trial, that she permanently vacated the subject stabilized apartment in late March or early April 2009 and relocated to Florida, which was prior to the service of landlord's notice of nonrenewal in July 2009 (see Budhu v Castro, 34 Misc 3d 36 [App Term, 1st Dept 2011]). Such evidence demonstrated prima facie that tenant did not have an "ongoing, substantial, physical nexus with the [apartment] premises for actual living purposes" (see Katz Park Ave. Corp. v Jagger, 11 NY3d 314, 317 [2008], quoting Emay Props. Corp. v Norton, 136 Misc 2d 127, 129 [App Term, [*2]1st Dept 1987]) and was legally sufficient to survive tenant's dismissal motion. We therefore reinstate the petition and remand for a new trial, including a determination on the merits of respondents-undertenants' succession defense (see Rent Stabilization Code [9 NYCRR] §§ 2523.5[b][1]; 2523.5[e][3]). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: October 01, 2015