1568-1572 Third Ave. LLC v Beachley

[*1] 1568-1572 Third Ave. LLC v Beachley 2016 NY Slip Op 50170(U) Decided on February 18, 2016 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 18, 2016
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, J.
571101/15

1568-1572 Third Avenue LLC, -Appellant,

against

Joan Hamilton Beachley a/k/a Joan Lardner Hamilton, Respondent-Tenant-Respondent, -and- Adam Hamilton, "John Doe," "Jane Doe," Respondents-Undertenants.

Landlord appeals from a final judgment of the Civil Court of the City of New York, New York County (Jean T. Schneider, J.) entered on or about June 1, 2012, after a nonjury trial, which dismissed the petition in a holdover summary proceeding.

Per Curiam.

Final judgment (Jean T. Schneider, J.) entered on or about June 1, 2012, reversed, with $30 costs, and final judgment of possession granted in favor of landlord on the holdover petition.

Our authority to review the record developed at the bench trial and render the judgment warranted by the facts is as broad as that of the trial court (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Nestor v Britt, 213 AD2d 255 [1999]). Exercising that authority here, and adopting the trial court's own fully supported factual findings that tenant was in Hawaii for 14 months during the two-year Golub period, and that she filed a Chapter 7 Bankruptcy petition in Hawaii during said period, we award landlord the possessory judgment sought in the holdover petition.

Significantly, tenant represented in her bankruptcy petition: that she "has been domiciled or had a residence" in Hawaii for "180 days immediately preceding the [October 14, 2005] date of the petition"; that she "moved [to Hawaii] within the two years immediately preceding the commencement of the case"; "occupied" the New York apartment since 2003, but "vacated" the New York apartment "3/05," and was in Hawaii from "4/05 to present"; and that she and her husband "live with their daughter [in Hawaii] and pay approximately $200 for family assistance." Moreover, tenant did not list her unexpired rent stabilized lease under Schedule G (Executory Contracts and Unexpired Leases) or Schedule C (Property Claimed as Exempt). The Bankruptcy Court issued an order of discharge on February 8, 2006.

Giving proper affect to the representations in the bankruptcy petition, inter alia, that tenant moved to, and has been residing in, Hawaii since April 2005, and in view of the Court's finding that tenant was in Hawaii for 14 months during the Golub period, we conclude that tenant's occupancy of the subject apartment "did not constitute the type of ongoing, substantial, physical nexus with the [regulated] premises for actual living purposes' [citations omitted] that would justify affording the tenancy continued protection under the rent stabilization laws" (Berwick Land Corp. v Mucelli, 249 AD2d 18, 18-19 [1998]). Indeed, such a conclusion is also consistent with tenant's deposition testimony, in which she essentially admitted that she "moved [to Hawaii] in 06, late 06," following her husband's move there in 2005, and her trial testimony that "I didn't move [to Hawaii] for the great weather. I moved for my grandkids." The factors relied upon by the trial court - that tenant's furniture and possessions remain in the apartment (where her son is residing), or that she voted in New York in the 2004 and 2008 presidential elections, or that certain financial statements reflect the New York address - do not warrant a contrary result.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur
Decision Date: February 18, 2016