206 W. 104th St. LLC v Cohen

[*1] 206 W. 104th St. LLC v Cohen 2013 NY Slip Op 51858(U) Decided on November 14, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 14, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Hunter, Jr., JJ
570675/12.

206 West 104th Street LLC c/o Lighthouse Properties LLC, Petitioner-Landlord-Respondent,

against

Sydney Cohen, Respondent-Tenant, -and- Jeff Cohen, Respondent-Appellant, -and- "John Doe" and "Jane Doe," Respondents.

Respondent Richard F. Cohen, s/h/a Jeff Cohen, appeals from a decision, judgment and final judgment of the Civil Court of the City of New York, New York County (David J. Kaplan, J.), each entered July 19, 2012, after a nonjury trial, which awarded landlord possession and a recovery of use and occupancy in a holdover summary proceeding.

Per Curiam.

Judgment and final judgment (David J. Kaplan, J.), each entered July 19, 2012, affirmed, with one bill of $25 costs. Appeal from decision (David J. Kaplan, J.), entered July 19, 2012, dismissed, without costs, as nonappealable.

A fair interpretation of the evidence supports the trial court's finding that the apartment premises was exempt from rent stabilization because of a high rent vacancy that occurred in 2008. The trial evidence showed that when a prior long-term, rent-stabilized tenant vacated the apartment in 2007, landlord retained a contractor to perform work in the apartment to prepare it for a new tenant. The testimonial and documentary evidence expressly credited by the court, including contemporaneous invoices and cancelled checks, established that landlord expended $42,812.81 for the extensive renovations performed throughout the apartment, including a gut renovation of the kitchen and bathroom, related plumbing work, and the sheetrocking of walls and new floors. Indeed, tenant herself testified that when she moved into the apartment in [*2]February 2010, the apartment had "newer appliances, newer cabinets, new floors." She stated that "everything was new or like new" in the kitchen, including a stainless steel refrigerator and dishwasher, and the "bathroom was renovated" with "new [marble] tile ... and a new sink [and] cabinets."

The evidence further supports a finding that the amounts expended by landlord were for improvements rather than repairs (see Jemrock Realty Co. LLC v Krugman, 72 AD3d 438 [2010], lv dismissed 15 NY3d 866 [2010]). The monthly improvement increase (one fortieth of $42,812.81) together with the vacancy and longevity increases, increased the legal rent above the $2,000 deregulation threshold (see Rent Stabilization Code [9 NYCRR] § 2520.11[r][4]; see also Jemrock Realty Co. LLC v Krugman, 13 NY3d 924 [2010]). On a bench trial, 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 where, as here, the findings of fact rest in large measure on considerations relating to the credibility of witnesses (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]).

We have considered appellant's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: November 14, 2013