Oakridge Ctr., LLC v Anthopoulis

[*1] Oakridge Ctr., LLC v Anthopoulis 2008 NY Slip Op 52147(U) [21 Misc 3d 132(A)] Decided on October 29, 2008 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 29, 2008
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKEON, P.J., DAVIS, HEITLER, JJ
570375/08.

Oakridge Center, LLC, Petitioner-Landlord-Appellant,

against

Carol Anthopoulis, Respondent-Tenant-Respondent.

Landlord appeals from a final judgment of the Civil Court of the City of New York, New York County (Laurie L. Lau, J.), entered on or about December 11, 2007, after a nonjury trial, which dismissed the petition in a nonprimary residence holdover proceeding.

Per Curiam.

Final Judgment (Laurie L. Lau, J.), entered on or about December 11, 2007, reversed, petition reinstated and matter remanded for further proceedings, with $30 costs to abide the event.

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]) through evidence demonstrating that for extended periods of time, building employees did not see tenant at the premises; that materials such as telephone books and take-out menus remained outside her apartment door; and that electricity usage in the apartment was minimal and "not consistent with someone living in the apartment." In view of this persuasive showing of tenant's extensive absences from the apartment premises, landlord satisfied its initial burden on its nonprimary residence claim and the lack of proof of an alternate address where tenant resided was not fatal to its prima facie case (see Toa Construction Co., Inc. v Tsitsires, 54 AD3d 109 [2008]; Emel Realty Corp. v Carey, 188 Misc 2d 280 [2001], affd 288 AD2d 163 [2001]). Inasmuch as the trial court erroneously dismissed the petition at the close of the evidence, without "ultimately assess[ing] [tenant's] credibility or ... the merits of her defenses," we remand for further proceedings, including a determination on the merits.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 29, 2008