Goldwater v Amicus Assoc. L.P.

Goldwater v Amicus Assoc. L.P. 2019 NY Slip Op 00022 Decided on January 3, 2019 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 3, 2019
Richter, J.P., Manzanet-Daniels, Tom, Gesmer, Kern, JJ.
7909 160002/15

[*1]Ethan Goldwater, Plaintiff-Appellant,

v

Amicus Associates Limited Partnership, Defendant-Respondent.

Ween & Kozek, PLLC, Brooklyn (Michael P. Kozek of counsel), for appellant.

Borah, Goldstein, Altschuler, Nahins & Goidel, P.C., New York (Paul N. Gruber of counsel), for respondent.

Order, Supreme Court, New York County (Erika M. Edwards, J.), entered December 8, 2017, which, insofar as appealed from, granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

"[T]he law does not extend the protection of rent stabilization to a person not using the subject apartment as a primary residence" (Chekowsky v Windermere Owners LLC, 130 AD3d 523, 523 [1st Dept 2015]). Moreover, "[a] party to litigation may not take a position contrary to a position taken in an income tax return" (Mahoney-Buntzman v Buntzman, 12 NY3d 415, 422 [2009]; see Naghavi v New York Life Ins. Co., 260 AD2d 252 [1st Dept 1999]).

Here, plaintiff does not dispute that he declared the full amount of rent and utilities for the subject unit on his 2014 and 2015 federal income tax returns for his S-Corporation, and that on his 2013 federal tax return, he deducted the full amount of rent and utility on Schedule C, which concerns profit and loss for a business. Plaintiff has therefore not established that he is subject to rent stabilization, as he cannot demonstrate that the unit was his primary residence (see Matter of Ansonia Assoc. L.P. v Unwin, 130 AD3d 453 [1st Dept 2015]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 3, 2019

CLERK