Opinion
7909 Index 160002/15
01-03-2019
Ethan GOLDWATER, Plaintiff–Appellant, v. AMICUS ASSOCIATES LIMITED PARTNERSHIP, Defendant–Respondent.
Ween & Kozek, PLLC, Brooklyn (Michael P. Kozek of counsel), for appellant. Borah, Goldstein, Altschuler, Nahins & Goidel, P.C., New York (Paul N. Gruber of counsel), for respondent.
Ween & Kozek, PLLC, Brooklyn (Michael P. Kozek of counsel), for appellant.
Borah, Goldstein, Altschuler, Nahins & Goidel, P.C., New York (Paul N. Gruber of counsel), for respondent.
Richter, J.P., Manzanet–Daniels, Tom, Gesmer, Kern, JJ.
Order, Supreme Court, New York County (Erika M. Edwards, J.), entered December 8, 2017, which, insofar as appealed from, granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
"[T]he law does not extend the protection of rent stabilization to a person not using the subject apartment as a primary residence" ( Chekowsky v. Windemere Owners LLC, 130 A.D.3d 523, 523, 14 N.Y.S.3d 35 [1st Dept. 2015] ). Moreover, "[a] party to litigation may not take a position contrary to a position taken in an income tax return" ( Mahoney–Buntzman v. Buntzman, 12 N.Y.3d 415, 422, 881 N.Y.S.2d 369, 909 N.E.2d 62 [2009] ; see Naghavi v. New York Life Ins. Co., 260 A.D.2d 252, 688 N.Y.S.2d 530 [1st Dept. 1999] ).
Here, plaintiff does not dispute that he declared the full amount of rent and utilities for the subject unit on his 2014 and 2015 federal income tax returns for his S–Corporation, and that on his 2013 federal tax return, he deducted the full amount of rent and utility on Schedule C, which concerns profit and loss for a business. Plaintiff has therefore not established that he is subject to rent stabilization, as he cannot demonstrate that the unit was his primary residence (see Matter of Ansonia Assoc. L.P. v. Unwin, 130 A.D.3d 453, 13 N.Y.S.3d 67 [1st Dept. 2015] ).