138th St. Props., LLC v Patrick

[*1] 138th St. Props., LLC v Patrick 2010 NY Slip Op 50270(U) [26 Misc 3d 140(A)] Decided on February 25, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 25, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, JJ
570536/09.

138th Street Properties, LLC, Petitioner-

against

Duane Patrick and Barbara Mitchell, Respondents-Appellants.

Respondent Barbara Mitchell appeals from a final judgment of the Civil Court of the City of New York, New York County (Michele D. Schreiber, J.), entered on or about April 23, 2009, after a nonjury trial, which awarded possession to landlord in a licensee holdover summary proceeding.

Per Curiam.

Final judgment (Michele D. Schreiber, J.), entered on or about April 23, 2009,, affirmed, without costs.

The trial court's determination that respondent Barbara Mitchell did not meet her affirmative obligation to establish succession rights to the subject rent controlled apartment premises (see Rent and Evictions Regulations [9 NYCRR] § 2204.6[d]) represents a fair interpretation of the evidence (see 318 E. 93, LLC v Ward, 276 AD2d 277 [2000]). Respondent failed to submit probative evidence confirming that she primarily resided with the record tenant at the subject premises for the requisite two-year period. Although the paucity of documentary evidence linking respondent to the subject premises is not fatal to her succession claim (see A & K Sanford Realty Corp. v Galvez, 8 Misc 3d 133[A] [2005], 2005 Slip Op 51156[U]), the court was permitted to find that she failed to establish "by a preponderance of credible personal testimony" (300 E. 34th St. Co. v Habeeb, 248 AD2d 50, 55 [1997]; see 23 Jones St. Assoc. v Keebler-Beretta, 284 AD2d 109 [2001]) that the subject apartment was her primary residence for the relevant time period. We note in this connection the strong evidence presented by petitioner connecting respondent to a different unit in the subject building premises during most of the relevant two-year period.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: February 25, 2010