521 E. 5th LLC v Brandon

[*1] 521 E. 5th LLC v Brandon 2009 NY Slip Op 52233(U) [25 Misc 3d 134(A)] Decided on November 6, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 6, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, JJ
570492/09.

521 East 5th LLC,

against

Daniel Brandon, Respondent-Tenant-Respondent.

Landlord appeals from an order of the Civil Court of the City of New York, New York County (Pam B. Jackman Brown, J.), entered on or about November 25, 2008, after a nonjury trial, which dismissed the petition in a nonprimary residence holdover summary proceeding at the end of landlord's case.

Per Curiam.

Order (Pam B. Jackman Brown, J.), entered on or about November 25, 2008, reversed, with $10 costs, motion denied and matter remanded for a new trial.

A motion for a directed verdict pursuant to CPLR 4401 should not be granted unless there is no rational process by which the fact-finder could base a finding in favor of the nonmoving party (Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]). In assessing the motion, the court must afford the party opposing the motion every inference that may properly be drawn from the evidence presented, and the evidence must be viewed in the light most favorable to the nonmoving party (id.). Applying those principles, we conclude that Civil Court erred in dismissing this nonprimary residence holdover proceeding at the close of landlord's case because landlord met its initial burden of establishing that tenant did not use the stabilized apartment as his primary residence (see Glenbriar Co. v Lipsman, 5 NY3d 388 [2005]). Landlord presented video surveillance tapes and testimony by the building's resident superintendent tending to establish the tenant's sporadic use of the subject Manhattan apartment and the frequent presence therein of a series of other persons, as well as correspondence apparently sent to tenant at a specified street address in Washington State. This evidence demonstrated prima facie that tenant did not have an ongoing, substantial, physical nexus with the apartment for actual living purposes (see TOA Const. Co., Inc. v Tsitsires, 54 AD3d 109, 113 [2008]; Emay Props. Corp. v Norton, 136 Misc 2d 127, 129 [1987]). Because landlord met its initial burden, Civil Court erroneously dismissed the petition at the close of landlord's case. Accordingly, we remand for a new trial.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 06, 2009