Skyview Towers Holding v Lucas

[*1] Skyview Towers Holding v Lucas 2005 NY Slip Op 50185(U) Decided on February 17, 2005 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 17, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., PATTERSON and GOLIA, JJ.
2004-384 Q C

Skyview Towers Holding, LLC, Respondent,

against

Bertha Lucas, a/k/a BERTHA BROCKINBERRY, Appellant, -and- "JOHN and JANE DOE", Occupants.

Appeal by tenant from a final judgment of the Civil Court, Queens County

(D. Waithe, J.), erroneously denominated as entered December 11, 2003, deemed (see CPLR 5520 [c]) as from the final judgment entered November 23, 2003, after a trial, awarding landlord possession.

Final judgment unanimously affirmed without costs.

The herein record amply supports the determination that tenant's occupancy did not "constitute the type of ongoing, substantial, physical nexus with the . . . [subject] premises for actual living purposes" that evidences a primary residence (Emel Realty Corp. v Carey, 188 Misc 2d 280, 282 [2001]; see Claridge Gardens v Menotti, 160
AD2d 544, 544-545 [1990]). In light of the traditional indicia of primary residence (see Matter of O'Quinn v New York City Dept. of Hous. Preservation & Dev., 284 AD2d 211 [2001]; Rules of City of NY, Department of Housing Preservation and Development [28 RCNY] § 3-02 [n] [4]), the proof that tenant obtained publicly-subsidized housing without revealing her ownership of a cooperative apartment, her entry of false information on three successive annual income affidavits, her use of the cooperative premises as her address for federal tax purposes, voting registration, pension plan benefits, and driver's documentation, her admission that her son occupied the subject premises since the lease's inception without listing his occupancy on any [*2]form with petitioner (while the only telephone installed at the subject premises was in her son's name), and her proposal, after receiving the termination notice, to transfer to the son the lease and attendant right to primary occupancy, collectively provide ample support for the court's determination that she did not occupy the subject premises as her
primary residence.
Decision Date: February 17, 2005