Coronet Properties Co. v. Adelman

112 A.D.2d 100

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 18, 1985
• Status: Published

Opinion

Order of the Supreme Court, New York County (Wright, J.), entered January 7, 1985, which granted defendants’ motion for summary judgment dismissing the complaint and directed an assessment on defendant’s counterclaim for attorneys’ fees, reversed, on the law, without costs, and summary judgment and the assessment denied.

Plaintiff" landlord commenced this action for a declaratory judgment in August 1984 that apartment 3-A at 405 West 57th Street was exempt from rent stabilization protection by virtue of the fact that defendants tenants did not occupy it as their primary residence.

The defendants are a widow and her son. The lease for the apartment was originally held by the widow and her late husband, and when that lease expired, the widow obtained a lease in her own name running through October 31, 1983.

The court, at Special Term, granted summary judgment to the defendants and, pursuant to Real Property Law § 234, directed an assessment for counsel fees, inasmuch as the defendants had been successful in the action commenced by the landlord.

Summary judgment was not warranted in view of the issues of fact which should be addressed. It is conceded that the son does not reside at the apartment and is merely a frequent visitor. The widow, when she stayed with her daughter at 301 East 79th Street, allegedly for only four days in October 1981, after she had been robbed, registered to vote from the 79th Street address. Moreover, the voter registration card indicated a longer period of residence at 79th Street. While there are other indicia of residence at 57th Street, some of them came into being after the commencement of the action. The conflict as to where the primary residence really is should be resolved at trial. Concur — Kupferman, J. P., Sandler, Bloom, Kassal and Rosenberger, JJ.