145 E. 16th St., LLCv.Spencer

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENTOct 1, 2015
No. 570121/12 (N.Y. App. Div. 2015)
No. 570121/1226 N.Y.S.3d 2142015 WL 57377962015 N.Y. Slip Op. 51392

No. 570121/12.

10-01-2015

145 EAST 16TH STREET, LLC, Petitioner–Landlord–Appellant, v. Lynore SPENCER a/k/a Lenore Spencer, Respondent–Tenant–Respondent, and Dana Spencer, David Gerstenhaber, “John Doe,” and “Jane Doe,” Respondents–UndertenantsRespondents.


Opinion

PER CURIAM.

Order (Cheryl J. Gonzales, J.), dated May 4, 2015, reversed, with $10 costs, tenant's dismissal motion denied, petition reinstated, and matter remanded for a new trial.

A motion for a directed verdict pursuant to CPLR 4401 should not be granted unless there is no rational process by which the fact-finder could base a finding in favor of the nonmoving party (see Szczerbiak v. Pilat, 90 N.Y.2d 553, 556 1997 ). In assessing the motion, the court must afford the party opposing the motion every inference that may be properly drawn from the evidence presented, and the evidence must be viewed in the light most favorable to the nonmoving party (Id.). Applying these principles, we conclude that Civil Court erred in dismissing this nonprimary residence proceeding at the close of landlord's case because landlord met its initial burden of establishing that tenant did not use the stabilized apartment as her primary residence (see Glenbriar Co. v. Lipsman, 5 NY3d 388 2005 ). Landlord presented proof, including tenant's deposition testimony as well as tenant's admission by stipulated facts at trial, that she permanently vacated the subject stabilized apartment in late March or early April 2009 and relocated to Florida, which was prior to the service of landlord's notice of nonrenewal in July 2009 (see Budhu v. Castro, 34 Misc.3d 36 [App Term, 1st Dept 2011] ). Such evidence demonstrated prima facie that tenant did not have an “ongoing, substantial, physical nexus with the [apartment] premises for actual living purposes” (see Katz Park Ave. Corp. v. Jagger, 11 NY3d 314, 317 2008, quoting Emay Props. Corp. v. Norton, 136 Misc.2d 127, 129 [App Term, 1st Dept 1987] ) and was legally sufficient to survive tenant's dismissal motion. We therefore reinstate the petition and remand for a new trial, including a determination on the merits of respondents-undertenants' succession defense (see Rent Stabilization Code 9 NYCRR §§ 2523.5[b]1; 2523.5[e]3 ).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur.