23 Jones Street Associates v. Keebler-Beretta

Appellate Division of the Supreme Court of New York

23 Jones Street Associates v. Keebler-Beretta

284 A.D.2d 109, 726 N.Y.S.2d 30, 2001 N.Y. App. Div. LEXIS 5656

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 5, 2001

StatusPublished

Cited by18 cases

This text of 284 A.D.2d 109 (23 Jones Street Associates v. Keebler-Beretta) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

23 Jones Street Associates v. Keebler-Beretta, 284 A.D.2d 109, 726 N.Y.S.2d 30, 2001 N.Y. App. Div. LEXIS 5656 (N.Y. Ct. App. 2001).

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Opinion

—Order of the Appellate Term of the Supreme Court, First Department, entered October 6, 2000, affirming a judgment of the Civil Court, New York County (Shirley Werner Kornreich, J., and a jury), entered January 24,1997, in a holdover proceeding, awarding possession of the subject rent-controlled apartment to respondent tenant, unanimously affirmed, without costs.

Respondent established her right to the subject apartment under New York City Rent and Eviction Regulations (9 NYCRR) § 2204.6 (d) (1) with legally sufficient evidence, mostly testimonial and turning largely on credibility, that the apartment was her primary residence between the time of her marriage to the tenant of record and the latter’s death some 3V2 years later. Nor is the verdict against the weight of the evidence. While documentary evidence can be significant in determining primary residence, it is not essential, and it does not necessarily preponderate over inconsistent testimonial evidence (see, 300 E. 34th St. Co. v Habeeb, 248 AD2d 50, 55). Moreover, there was some documentary evidence of respondent’s residency, namely, her voter registration card and the letter she wrote the then-managing agent advising of her marriage and occupancy of the apartment. The trial court did not err in refusing to instruct the jury to draw a negative inference against respondent for failing to introduce tax returns for the relevant period, since the only evidence as to respondent’s tax returns, never subpoenaed by petitioner, was that the last one she filed was for the tax year prior to her marriage. Nor was it error to refuse a charge that married people can maintain separate primary residences. As Appellate Term stated, the latter [110]*110is a proposition within the common sense knowledge and experience of jurors. Concur — Sullivan, P. J., Rosenberger, Ellerin, Wallach and Marlow, JJ.

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—Order of the Appellate Term of the Supreme Court, First Department, entered October 6, 2000, affirming a judgment of the Civil Court, New York County (Shirley Werner Kornreich, J., and a jury), entered January 24,1997, in a holdover proceeding, awarding possession of the subject rent-controlled apartment to respondent tenant, unanimously affirmed, without costs.

Respondent established her right to the subject apartment under New York City Rent and Eviction Regulations (9 NYCRR) § 2204.6 (d) (1) with legally sufficient evidence, mostly testimonial and turning largely on credibility, that the apartment was her primary residence between the time of her marriage to the tenant of record and the latter’s death some 3V2 years later. Nor is the verdict against the weight of the evidence. While documentary evidence can be significant in determining primary residence, it is not essential, and it does not necessarily preponderate over inconsistent testimonial evidence (see, 300 E. 34th St. Co. v Habeeb, 248 AD2d 50, 55). Moreover, there was some documentary evidence of respondent’s residency, namely, her voter registration card and the letter she wrote the then-managing agent advising of her marriage and occupancy of the apartment. The trial court did not err in refusing to instruct the jury to draw a negative inference against respondent for failing to introduce tax returns for the relevant period, since the only evidence as to respondent’s tax returns, never subpoenaed by petitioner, was that the last one she filed was for the tax year prior to her marriage. Nor was it error to refuse a charge that married people can maintain separate primary residences. As Appellate Term stated, the latter [110]*110is a proposition within the common sense knowledge and experience of jurors. Concur — Sullivan, P. J., Rosenberger, Ellerin, Wallach and Marlow, JJ.

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Bluebook (online)

284 A.D.2d 109, 726 N.Y.S.2d 30, 2001 N.Y. App. Div. LEXIS 5656, Counsel Stack Legal Research, https://law.counselstack.com/opinion/23-jones-street-associates-v-keebler-beretta-nyappdiv-2001.

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