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Appellate Term of the Supreme Court of New York, First DepartmentSep 16, 2010
2010 N.Y. Slip Op. 51600 (N.Y. Misc. 2010)


Decided September 16, 2010.

Landlord appeals from a final judgment of the Civil Court of the City of New York, New York County (Jean T. Schneider, J.), entered on or about January 5, 2009, after a nonjury trial, in favor of tenant dismissing the petition in a holdover summary proceeding.

PRESENT: McKeon, P.J., Shulman, Hunter, Jr., JJ.

Final judgment (Jean T. Schneider, J.), entered on or about January 5, 2009, affirmed, with $25 costs.

The evidence developed upon the trial of this owner-use holdover proceeding amply supports the trial court's credibility-based determination that landlord did not have a good faith intention to occupy the subject Manhattan rent stabilized apartment premises as her primary residence ( see Felix v Farber , 21 Misc 3d 145 [A], 2008 NY Slip Op 52538[U]). In a prior owner-use proceeding commenced against another tenant in the subject building, landlord asserted reasons substantially similar to those asserted in the nonrenewal notice used as a predicate for the instant proceeding — that landlord wanted to live closer to an aging (now deceased) parent and stepparent, and wanted to live in Manhattan because it was convenient for her law practice and her legally blind husband. That prior proceeding was dismissed — apparently on a procedural ground — with landlord and the tenant of that apartment subsequently entering into an agreement pursuant to which the tenant vacated the unit. Significantly, landlord did not take occupancy of that apartment upon that tenant's vacatur. Moreover, the trial court was warranted in viewing with skepticism landlord's stated intention to primarily reside in the small, fourth- and fifth-floor duplex apartment here at issue, particularly in view of the physical ailments of both landlord and landlord's husband, and the lack of elevator service in the building premises.