79 E. Owner, LLC v Del Rio

[*1] 79 E. Owner, LLC v Del Rio 2010 NY Slip Op 51971(U) [29 Misc 3d 134(A)] Decided on November 15, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 15, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Schoenfeld, J. P., Shulman, Hunter, Jr., JJ
570287/10.

79 East Owner, LLC, Petitioner-Landlord-Respondent,

against

Gloria Del Rio, Respondent-Tenant-Appellant.

Tenant appeals from a final judgment of the Civil Court of the City of New York, New York County (Jean T. Schneider, J.), entered on or about February 8, 2010, which awarded possession to landlord in a holdover summary proceeding.

Per Curiam.

Final judgment (Jean T. Schneider, J.), entered on or about February 8, 2010, affirmed, with $25 costs.

The evidence, fairly interpreted, supports the trial court's fact-laden determination that tenant did not occupy the subject rent stabilized apartment as her primary residence. Notably, landlord's documentary evidence demonstrated 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 [2008]; Emay Props. Corp. v Norton, 136 Misc 2d 127 [1987]; see also Emel Realty Corp. v Carey, 288 AD2d 163 [2001]; Sommer v Ann Turkel, Inc., 137 Misc 2d 7 [1987]; cf. Coronet Props. Co. v Brychova, 122 Misc 2d 212 [1983], affd 126 Misc 2d 946 [1984]), and the court expressly found that tenant's testimony regarding her use of the apartment was not credible, a finding we decline to disturb.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: November 15, 2010