Opinion
570596/03.
Decided April 16, 2004.
Landlord appeals from a final judgment of the Civil Court, New York County, entered on or about May 29, 2003 after a nonjury trial (Peter M. Wendt, J.) dismissing the petition in a nonprimary residence holdover proceeding.
Final judgment entered on or about May 29, 2003 (Peter M. Wendt, J.) affirmed, with $25 costs.
PRESENT: HON. LUCINDO SUAREZ, P.J., HON. WILLIAM P. McCOOE, HON. MARTIN SCHOENFELD, Justices.
The trial court's fact-laden determination that the long-term (29-year) rent stabilized tenant primarily resides in the subject Manhattan apartment represents a fair interpretation of the evidence, and is not disturbed. Based largely on its "careful assessment" of the tenant's testimony as "entirely credible" and of the testimony of the landlord's sole witness, the building superintendent, as unpersuasive and "unworthy of belief," the trial court expressly found that tenant maintains an ongoing presence at and, indeed, "resides only" in the Manhattan apartment. It is true, as tenant readily acknowledged, that tenant runs a catering business based in Long Beach, Long Island and owns two investment properties there, including a two-family dwelling alleged by landlord to constitute tenant's primary residence. Tenant persuasively showed and the trial court reasonably found, however, that at all relevant times both units in the two-family dwelling were leased to and occupied by separate tenants and that tenant frequently commuted to Long Beach for business purposes, but did not live there. That certain documentation, including the tenant's tax returns, specified a Long Beach address is not dispositive and does not, in these circumstances, preponderate over the tenant's credited testimonial evidence ( see, 23 Jones St. Assocs. v. Keebler-Beretta, 284 AD2d 109; Village Dev. Assocs. v. Walker, 282 AD2d 369).
While proof sufficient to make a prima facie showing of nonprimary residence shifts the burden of going forward to the tenant, the ultimate burden of persuasion remains on the landlord seeking eviction on the basis of nonprimary residence ( see generally, Emel Realty Corp. v. Carey, 188 Misc 2d 280, 282-283, affd 288 AD2d 163). On this record, and evaluating the entire history of the tenancy ( see, 615 Co. v. Mikeska, 75 NY2d 987, 988), we agree that landlord failed to meet that burden here.
This constitutes the decision and order of the court.