Opinion
570687/04
Decided on June 13, 2005.
Landlord appeals from an order of the Civil Court, New York County, entered July 8, 2004 (Joseph E. Capella, J.) which granted tenant's motion for summary judgment dismissing the nonprimary residence holdover petition.
Order entered July 8, 2004 (Joseph E. Capella, J.) reversed, with $10 costs, tenant's motion for summary judgment denied and petition reinstated.
Before: PRESENT: HON. LUCINDO SUAREZ, P.J. HON. WILLIAM J. DAVIS HON. PHYLLIS GANGEL-JACOB, Justices.
This nonprimary residence holdover proceeding is not susceptible to summary dismissal, since there exist material questions of fact as to the nature and extent of the tenant's presence at and usage of the subject West 110th Street, Manhattan apartment and an Albuquerque, New Mexico property jointly owned by tenant and her husband. The record shows that the tenant frequently visited Albuquerque through at least the end of 2000 (roughly a year and a half prior to service of the underlying termination notice) to visit her then New Mexico domiciled boyfriend (now husband), that tenant continues to maintain a bank account in Albuquerque, that she represented that the Albuquerque property was her primary residence in a 1999 loan application, and that another person (Diamondstein) lived in the Manhattan apartment through at least January 2002, allegedly sharing the unit with tenant, tenant's husband, and the couple's infant child in "crowded" conditions. The evidence thus failed to establish as a matter of law that tenant primarily resides in the Manhattan apartment, and the drastic remedy of summary judgment was unwarranted.
This constitutes the decision and order of the court.