Opinion
06-20-2017
In re 135 WEST. LLC, Petitioner–Respondent, v. Judith STOLLERMAN, et al., Respondents–Appellants.
Cardozo Bet Tzedek Legal Services, New York (Leslie Salzman of counsel), for appellants. Cyruli Shanks Hart & Zizmor, LLP, New York (James E. Schwartz of counsel), for respondent.
Cardozo Bet Tzedek Legal Services, New York (Leslie Salzman of counsel), for appellants.
Cyruli Shanks Hart & Zizmor, LLP, New York (James E. Schwartz of counsel), for respondent.
FRIEDMAN, J.P., RENWICK, MANZANET–DANIELS, KAPNICK, GESMER, JJ.
Order of the Appellate Term of the Supreme Court, First Department, entered on or about May 3, 2016, which reversed a judgment of the Civil Court, New York County (Sheldon J. Halprin, J.), entered on or about December 10, 2012, after a nonjury trial, dismissing the holdover petition, and awarded possession of the subject rent-stabilized apartment to petitioner landlord, unanimously reversed, on the law, with costs, the petition denied, and the proceeding dismissed. The Clerk is directed to enter judgment accordingly.
Respondents, who are in their 80s, have been joint lessees of a studio apartment and a one-bedroom apartment, Apartments 3 and 4, respectively, the only apartments on the second floor of the subject premises, for more than 40 years, under a succession of landlords. Petitioner, the current landlord, established prima facie that Apartment 4 was not respondents' primary residence by presenting surveillance video and Con Edison's records of electrical usage (see Rent Stabilization Code [9 NYCRR] § 2524.4[c] ; Glenbriar Co. v. Lipsman, 5 N.Y.3d 388, 392, 804 N.Y.S.2d 719, 838 N.E.2d 635 [2005] ). However, respondents rebutted petitioner's case and demonstrated that the two apartments were treated as a combined primary residence (see Glenbriar Co. v. Lipsman, 5 N.Y.3d at 393, 804 N.Y.S.2d 719, 838 N.E.2d 635 ; Sharp v. Melendez, 139 A.D.2d 262, 531 N.Y.S.2d 554 [1st Dept.1988], lv. denied 73 N.Y.2d 707, 539 N.Y.S.2d 300, 536 N.E.2d 629 [1989] ), and there is no evidence that respondents' living arrangement was entered into as a means of avoiding rent stabilization laws (see Riverside Syndicate, Inc. v. Munroe, 10 N.Y.3d 18, 853 N.Y.S.2d 263, 882 N.E.2d 875 [2008] ).
The trial court's findings were reached under a fair interpretation of the evidence, and are thus entitled to deference (see
409–411 Sixth St., LLC v. Mogi, 22 N.Y.3d 875, 976 N.Y.S.2d 681, 999 N.E.2d 159 [2013] ; 542 E. 14th St. LLC v. Lee, 66 A.D.3d 18, 22, 883 N.Y.S.2d 188 [1st Dept.2009] ). The court credited respondents' testimony as to respondent Sandow's decision to sleep in Apartment 3 temporarily, due to the situation created by the upstairs neighbor and a perceived threat posed by the scaffold and shed located outside the window(s) of that apartment (see 542 E. 14th St., 66 A.D.3d at 19, 883 N.Y.S.2d 188 ; Ascot Realty LLC v. Richstone, 10 A.D.3d 513, 781 N.Y.S.2d 513 [1st Dept.2004], lv. dismissed 4 N.Y.3d 842, 797 N.Y.S.2d 413, 830 N.E.2d 311 [2005] ).
The evidence of limited electrical consumption in Apartment 4 does not compel a finding of nonprimary residence, given respondent Sandow's explanation for it, which includes her inability to use the kitchen and shower there.