East Hattan Realty Corp. v Antonio

[*1] East Hattan Realty Corp. v Antonio 2009 NY Slip Op 52249(U) [25 Misc 3d 135(A)] Decided on November 10, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 10, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, JJ
570772/08.

East Hattan Realty Corp., Petitioner-Landlord-

against

Elma Antonio, Rafael Antonio, Respondents-Tenants-Appellants.

Tenants appeal from a final judgment of the Civil Court of the City of New York, New York County (Peter M. Wendt, J.), entered on or about September 22, 2008, after a nonjury trial, which awarded possession to landlord in a holdover summary proceeding.

Per Curiam.

Final judgment (Peter M. Wendt, J.), entered on or about September 22, 2008, affirmed, with $25 costs.

According due deference to the trial court's detailed factual findings and to its assessment of the credibility of the witnesses, we find no cause to disturb the court's determination that tenants did not maintain the rent stabilized apartment as their primary residence. A fair interpretation of the evidence supports the trial court's determination that tenants did not maintain an "ongoing, substantial, physical nexus with the [rent stabilized] premises for actual living purposes" (Emel Realty Corp. v Carey, 288 AD2d 163 [2001]), but instead primarily resided in Uniondale, Long Island. In this connection we note that (1) tenants were mortgagors on a mortgage relating to a Uniondale home, (2) the mortgage required tenants to use the home as their principal residence for at least one year, (3) tenants took deductions on their federal income tax returns for interest payments made on the mortgage, (4) the mortgage interest statements were addressed to tenants and sent to them at the Uniondale property, and (5) the trial court credited the testimony of landlord's building manager, which strongly supported landlord's claim that tenants did not use the apartment as their primary residence.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur [*2]
Decision Date: November 10, 2009