33-39 E. 60th St. LLC v Huston

[*1] 33-39 E. 60th St. LLC v Huston 2021 NY Slip Op 50972(U) Decided on October 14, 2021 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 14, 2021
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Edmead, P.J., Brigantti, Hagler JJ.
570255/20

33-39 East 60th Street LLC, c/o Sol Goldman Investments LLC, Petitioner-Landlord-Appellant,

against

Michael Huston, Respondent-Tenant-Respondent, and Michael Bacle a/k/a Michael LeBacle, "John Doe" and "Jane Doe," Respondents-Undertenants.

Landlord appeals from an amended final judgment of the Civil Court of the City of New York, New York County (Anne Katz, J.), entered October 3, 2019, after a nonjury trial, in favor of tenant dismissing the petition in a holdover summary proceeding.

Per Curiam.

Amended final judgment (Anne Katz, J.), entered October 3, 2019, affirmed, with $25 costs.

In this summary holdover proceeding to recover possession of a loft unit in an interim multiple dwelling on the ground that it had not been occupied as a primary residence (see 29 RCNY § 2-08.1), Civil Court determined, after a nonjury trial, that landlord failed to meet its burden to establish nonprimary residency by a preponderance of the evidence. We see no basis to disturb Civil Court's resolution of the issues of fact raised at the trial of this matter since it is "not obvious that the court's conclusions could not be reached under any fair interpretation of the evidence, especially when the findings of fact rest in large measure on considerations relating to the credibility of witnesses" (Claridge Gardens v Menotti, 160 AD2d 544, 545 [1990]). The testimonial and documentary evidence, fairly interpreted, supports a finding that the tenant maintained a substantial, physical nexus to the apartment for actual living purposes which is reflected on most of his important documents, such as his driver's license, voter registration, tax, banking and Social Security records, and that his temporary absences from the apartment, including a lengthy hospitalization, were excusable (see 542 E. 14th St. LLC v Lee, 66 AD3d 18 [2009]).

Even assuming that the Court erred in limiting the temporal scope of the trial evidence to [*2]the "2014 calendar year," any such error does not require reversal in the particular circumstances of this case. Tenant was a statutory tenant and no particular lease renewal term was in effect. Nevertheless, landlord obtained broad discovery for the two-year period prior to the June 30, 2015 termination of the tenancy, and was in possession of its own video surveillance of tenant's comings and goings from the premises. However, when the court requested the submission of papers regarding its decision to limit the temporal scope of evidence, landlord did not make any offer of proof at that time (or thereafter) regarding evidence outside the calendar year 2014 that would affect the outcome of the case (see 184-188 Claremont Invs., LLC v Nelson, 46 Misc 3d 148[A], 2015 NY Slip Op 50235[U] [App Term, 1st Dept 2015]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: October 14, 2021