Opinion
2002-971 K C.
Decided on August 17, 2005.
Appeals by tenants from a (1) final judgment of the Civil Court, Kings County (G. Lebovits, J.), entered May 28, 2002, awarding landlord possession and the sum of $4,543, and (2) an order of the same court (K. Rothenberg, J.), entered January 26, 2004, denying their motion to vacate the warrant and the final judgment.
Final judgment and order unanimously affirmed without costs.
PRESENT: August 17, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS PRESENT: PESCE, P.J., PATTERSON and RIOS, JJ.
The trial court's determination that landlord sought tenants' apartment in good faith for her personal use as a primary residence (Rent Stabilization Code [ 9 NYCRR] § 2524.4 [a]) is based in large part upon the credibility determinations of the court as trier of fact. These determinations are entitled to great deference upon appeal and will not be disturbed unless clearly unsupported by the record ( see e.g. John Eric Jacoby, M.D., P.C. v. Loper Assocs., 249 AD2d 277). It should be noted in this context that the apparent failure of landlord to obtain a divorce does not in itself demonstrate a lack of good faith. Nor is a finding of a lack of good faith mandated by the availability of other apartments in the building or based upon prior discord between the parties ( see Gussow v. Hornblower, 4 Misc 3d 141[A], 2004 NY Slip Op 50706[U] [App Term, 1st Dept]).
A fair interpretation of the evidence indicates that landlord and her husband are estranged, regardless of the legal status of their marriage. Moreover, a husband and wife, whether estranged or not, may legitimately maintain separate primary residences ( see Glenbriar Co. v. Lipsman, 2002 NY Slip Op 50225[U] [App Term, 1st Dept] [P. Gangel-Jacob, J. concurring]; see also Matter of Rose Assoc. v. State Div. of Hous. and Community Renewal Off. of Rent Admin., 121 AD2d 185, 187 [1986]; Newport Apts. Co. v. Schechter, 124 Misc 2d 760 [Civ Ct, Queens County 1984], affd 127 Misc 2d 793 [App Term, 2d 11th Jud Dists 1984]).
With respect to tenants' claims regarding the multiple dwelling registration, it is our view that tenants should have raised any objection to landlord's proffered multiple dwelling registration when the same was produced at trial and admitted into evidence without objection as to its authenticity.
We note that in the circumstances presented, consideration of tenants' motion by the Supervising Judge rather than the trial judge was a provident exercise of discretion.