Second 82nd Corp. v. Veiders

2017 NY Slip Op 566, 146 A.D.3d 696, 46 N.Y.S.3d 63

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 26, 2017
• Docket: 2893 570261/11 53945/10
• Status: Published

Opinion

Order, Appellate Term of the Supreme Court, First Department, entered April 28, 2016, affirming a judgment of the Civil Court, New York County (Sabrina B. Kraus, J.), entered on or about October 14, 2014, after a nonjury trial, dismissing the petition in this holdover proceeding, unanimously affirmed, without costs.

The trial court’s determination that respondent tenant’s absence from his rent-stabilized apartment for more than 183 days per year during the relevant period was excusable (see Rent Stabilization Code [9 NYCRR] §§ 2520.6 [u]; 2523.5 [b] [2] [vi]; 2524.4 [c]) and is supported by a fair interpretation of the evidence, including the credible testimony of respondent and his sister that respondent returned to the apartment periodically, did not remove his personal belongings from the premises, never sublet the apartment, and paid New York City self-employment taxes (see 409-411 Sixth St., LLC v Mogi, 22 NY3d 875 [2013]). The record shows that respondent listed the apartment as his address on his federal, state, and city tax returns, among numerous other documents filed with public agencies (see 9 NYCRR 2520.6 [u] [1]). While the record also includes documents on which respondent listed his mother’s residence in Clarence, New York, as his address, the trial court, which was in a position to assess the credibility of witnesses, credited respondent’s explanation for the discrepancy (see 300 E. 34th St. Co. v Habeeb, 248 AD2d 50, 55 [1st Dept 1997]).

Concur— Friedman, J.P., Richter, Saxe, Moskowitz and Kapnick, JJ.