Kalikow Family Partnership, LP v Seidemann

[*1] Kalikow Family Partnership, LP v Seidemann 2015 NY Slip Op 51080(U) Decided on July 14, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 14, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., ALIOTTA and ELLIOT, JJ.
2013-1814 K C

Kalikow Family Partnership, LP, Respondent,

against

David Seidemann, Appellant, -and- "JOHN DOE" and "JANE DOE," Undertenants.

Appeal by tenant from a final judgment of the Civil Court of the City of New York, Kings County (Kevin C. McClanahan, J.), entered June 16, 2013. The final judgment, after a nonjury trial, awarded landlord possession in a holdover summary proceeding.

ORDERED that the final judgment is affirmed, without costs.

Landlord commenced this holdover proceeding to recover possession of tenant's rent-stabilized Brooklyn apartment, pursuant to Rent Stabilization Code (9 NYCRR) § 2524.4 (c), on the ground that tenant did not occupy the apartment as his primary residence. Rent Stabilization Code (9 NYCRR) § 2520.6 (u) provides that a court may consider several factors when determining whether a premises is being occupied as a primary residence, but "no single factor shall be solely determinative" (see Katz Park Ave. Corp. v Jagger, 11 NY3d 314, 317 [2008]; Glenbriar Co. v Lipsman, 5 NY3d 388, 392-393 [2005]).

At a nonjury trial, landlord presented testimony that tenant, a professor at Brooklyn College, had first leased his Brooklyn apartment in 1975. Prior to tenant's marriage in 1993, he had purchased a house in Connecticut, which is where his wife and children primarily reside, and where tenant is registered to vote. Tenant teaches classes at Brooklyn College two to three days per week and, otherwise, spends his time in Connecticut. He usually goes to Connecticut on Fridays and returns to Brooklyn on either Tuesday or Wednesday. Tenant's employment duties include teaching, which constitutes 25% of his duties, research, which constitutes 60% (tenant performed all of his research in Connecticut for more than 30 years), and other things, such as committee work, which constitutes 15%. By virtue of the foregoing proof, landlord demonstrated, by a preponderance of the evidence, that tenant did not use the subject premises as his primary residence (see e.g. Glenbriar Co. v Lipsman, 5 NY3d at 392). It was, therefore, incumbent upon tenant to rebut landlord's showing by demonstrating "a substantial, physical nexus to the apartment" (Glenbriar Co. v Lipsman, 5 NY3d at 393; see also Katz Park Ave. Corp. v Jagger, 11 NY3d at 317; Emel Realty Corp. v Carey, 288 AD2d 163 [2001]). Tenant testified [*2]that he spent 20 to 25 hours per week doing research in Connecticut [FN1] and, on the average, spent between 120 and 160 days in Brooklyn each year. He did not have a driver's license, did his banking in Brooklyn, and all of his healthcare providers were located in Brooklyn.

Following the trial, the Civil Court awarded possession to landlord, finding that tenant did not have a substantial physical nexus to the Brooklyn apartment. Upon a review of the record, we find that the conclusions of the court could be reached under a fair interpretation of the evidence (see 409-411 Sixth St., LLC v Mogi, 22 NY3d 875, 876-877 [2013]; Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Claridge Gardens v Menotti, 160 AD2d 544, 545 [1990]). Consequently, we find no basis to disturb the court's determination.

We note that tenant did not preserve for review his contention that the Civil Court demonstrated bias against him which deprived him of a fair trial (see Tonkin v Lofthouse, 34 AD3d 1309 [2006]; Camperlengo v Lenox Hill Hosp., 239 AD2d 150 [1997]). In any event, the record establishes that "the actions of the trial court were, in the main, directed towards focusing the proceedings on the relevant issues and clarifying facts material to the case in order to expedite the trial. . . . [O]verall the conduct complained of was not so egregious as to deprive the defendant of a fair trial" Sheinkerman v 3111 Ocean Parkway Assoc., 259 AD2d 480 [1999]; see also Tonkin v Lofthouse, 34 AD3d 1309). Tenant's remaining contentions are similarly without merit.

Accordingly, the final judgment is affirmed.

Weston, J.P., Aliotta and Elliot, JJ., concur.

Decision Date: July 14, 2015

Footnotes

Footnote 1:We note that tenant did not testify that his job required him to perform his research in Connecticut.