Sixth Lenox Terrace Assoc. v Poney

[*1] Sixth Lenox Terrace Assoc. v Poney 2009 NY Slip Op 51640(U) [24 Misc 3d 140(A)] Decided on July 29, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 29, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
570402/08.

Sixth Lenox Terrace Associates, Petitioner-Landlord-Appellant,

against

Edna Poney and Keith Poney, Respondents-Tenants-Respondents, -and- "John Doe" and "Jane Doe," Respondents-Undertenants.

Landlord appeals from a final judgment of the Civil Court of the City of New York, New York County (Ruben Andres Martino, J.), entered November 9, 2005, after a nonjury trial, which dismissed the petition in a holdover summary proceeding.

Per Curiam.

Final judgment (Ruben Andres Martino, J.), entered November 9, 2005, affirmed, without costs.

The trial court's credibility-based determination that respondent Keith Poney, the son of the departed rent stabilized tenant, met his affirmative obligation of establishing succession rights to the stabilized tenancy (see Rent Stabilization Code [9 NYCRR] §§ 2523.5[b][1]; 2520.6[o][1]) represents a fair interpretation of the evidence, and is not disturbed. The testimonial and documentary evidence produced at trial supports a finding that respondent moved into the apartment in 2000 and resided there as a primary resident for the requisite two-year period immediately prior to his mother's vacatur in late 2003. The trial court was warranted in accepting the unrebutted testimony of respondent's witnesses, which established that respondent, upon separating from his wife, returned to the apartment in or around early 2000 to live with his mother. Respondent's residency in the apartment was substantiated by documentary evidence, such as W-2 forms, tax returns for 2000 and 2001, retirement benefit statements and voter registration, all listing the subject Manhattan apartment as his residence. That certain documents, such as respondent's driver's licence and vehicle registration, listed the address where respondent previously resided with his wife, does not, in these circumstances, preponderate over [*2]respondent's plausible and fully credited testimonial evidence (see 23 Jones St. Assoc. v Keebler-Beretta, 284 AD2d 109 [2001]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: July 29, 2009