Nicole Assets, Inc. v Yeargin

[*1] Nicole Assets, Inc. v Yeargin 2009 NY Slip Op 51861(U) [24 Misc 3d 145(A)] Decided on September 1, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 1, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
.

Nicole Assets, Inc., Petitioner-Landlord-Appellant, 570522/08

against

James Yeargin, Respondent-Tenant-Respondent, -and- "John Doe" and "Jane Doe," Respondents-Occupants.

Landlord appeals from a final judgment of the Civil Court of the City of New York, New York County (Marc Finkelstein, J.), entered on or about July 19, 2007, after a nonjury trial, which dismissed the petition in a holdover summary proceeding.

Per Curiam.

Final judgment (Marc Finkelstein, J.), entered on or about July 19, 2007, affirmed, with $25 costs.

After a trial spanning five days, the trial court dismissed this nonprimary residence holdover proceeding upon its determination that the long-term (40-year) rent controlled tenant primarily resides at the subject Manhattan apartment. We find unavailing landlord's contention that the court's decision and underlying findings of fact do not comport with the weight of the evidence. On appeal from a judgment after a bench trial, this court is authorized to grant the judgment warranted by the facts, "taking into account in a close case the fact that the trial judge has the advantage of seeing the witnesses" (Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]). However, "the decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence, especially when the findings of fact rest in large measure on considerations relating to witness credibility" (Claridge Gardens v Menotti, 160 AD2d 544 [1990]). The evidence, fairly interpreted, supports the court's finding that tenant has an "ongoing, substantial, physical nexus" to the subject apartment (see Emel Realty Corp. v Carey, 288 AD2d 163 [2001]), where he regularly sleeps, prepares and eats meals, and receives mail, and which is the address listed on his driver's license, W-2 forms and social security and voter registration documents. Tenant's daily presence at the condominium apartment where his estranged wife separately resides was, in the trial court's words, "convincing[ly] and credib[ly]" explained by the consistent testimony of tenant and his witnesses that tenant visited the [*2]condominium premises to care for his wife, who was seriously ill during the relevant time period. Based on the record as a whole, and giving due deference to the trial court's express findings of fact and credibility, we conclude that the evidence did not so preponderate in favor of landlord that the verdict could not have been reached on any fair interpretation of the evidence (see Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: September 01, 2009