Opinion
570016/04.
Decided June 25, 2004.
Landlord appeals from a final judgment of the Civil Court, New York County, entered on or about May 12, 2003 after a nonjury trial (Jean T. Schneider, J.) in favor of tenant dismissing the petition in a nonprimary residence holdover proceeding.
Final judgment entered on or about May 12, 2003 (Jean T. Schneider, J.) affirmed, with $25 costs.
PRESENT: HON. WILLIAM P. McCOOE, J.P., HON. WILLIAM J. DAVIS, HON. PHYLLIS GANGEL-JACOB, Justices.
The trial court's determination that the long-term stabilized tenant primarily resides in the demised East 55th Street apartment was not against the weight of the evidence, which, fairly considered, supported the court's express finding that tenant "was in the subject apartment on a regular basis during the morning and evening hours and that he entertained there regularly throughout [the disputed time period]." Nor is a finding that tenant primarily resided in a Fifth Avenue apartment leased by his (now former) girlfriend required on this record, which undisputedly shows that tenant kept his furniture and personal belongings in the subject apartment and, as one of the landlord's own witnesses acknowledged, was always announced as a visitor by a lobby attendant upon entry into the Fifth Avenue building. Giving due deference to the trial court's findings of fact and credibility ( see Claridge Gardens v. Menotti, 160 AD2d 544), we agree that the landlord failed in its burden to establish that tenant no longer primarily resides in the subject apartment.
This constitutes the decision and order of the court.