317 Magnone LLC v. Gumina

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 8, 2017
• Docket: 2017 NYSlipOp 50612(U)
• Status: Published

Opinion

317 Magnone LLC, Petitioner-Landlord-Respondent,

against

Carol Ann Gumina, Respondent-Tenant-Appellant.

Tenant appeals from a final judgment of the Civil Court of the City of New York, New York County (Jean T. Schneider, J.), entered March 28, 2016, after a nonjury trial, awarding possession to landlord in a holdover summary proceeding.

Per Curiam.

Final judgment (Jean T. Schneider, J.), entered March 28, 2016, affirmed, with $25 costs.

A fair interpretation of the evidence supports the finding that tenant did not utilize the subject rent controlled apartment as her primary residence (see 409-411 Sixth St., LLC v Mogi, 22 NY3d 875 [2013]). The trial evidence showed and it was essentially undisputed that tenant was not present in the apartment at all from March 2010 through the July 2013 commencement of this proceeding. Indeed, tenant did not return to the apartment until the time of her deposition in June 2015 and, after the deposition, she did not return again until the time of trial in February 2016. During her extended absence, tenant was in Wisconsin, where she owns property and is licensed to drive. Tenant also referenced the Wisconsin address on her federal tax returns and court filings (see Berwick Land Corp. v Mucelli, 249 AD2d 18 [1998]).

The court was also warranted in concluding that tenant's absence was not temporary and excusable (see Second 82nd Corp. v Veiders, 146 AD3d 696 [2017]; 542 E. 14th St. LLC v Lee, 66 AD3d 18, 22 [2009]). Tenant's vaguely articulated intent to return at some unspecified time in the future was properly rejected (see 1286 First Realty Assoc. v Malatinsky, 176 Misc 2d 596, 597 [1998]).

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

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: May 08, 2017