Opinion
570146/08.
Decided October 15, 2010.
In consolidated holdover summary proceedings, tenants appeal from 1) an order of the Civil Court of the City of New York, New York County (Gary F. Marton, J.), dated December 7, 2007, which denied their motion to dismiss the petitions; 2) an order (same court and Judge), dated January 23, 2008, which denied, in part, tenants' motion to modify a prior order of the Court; 3) a final judgment of the same Court (Jean T. Schneider, J.), entered on or about February 23, 2009, after a nonjury trial, awarding landlords possession; and 4) an order (same court and Judge), dated June 16, 2009, which denied tenants' post-trial motion pursuant to CPLR 4404 and granted landlords' cross motion to the extent of directing a hearing on the amount of legal fees and use and occupancy due landlords.
PRESENT McKeon, P.J., Shulman, Hunter, Jr., JJ.
Final judgment (Jean T. Schneider, J.), entered on or about February 23, 2009, and order (same court and Judge), dated June 16, 2009, affirmed, with one bill of $25 costs. Appeal from orders (Gary F. Marton, J.), dated December 7, 2007 and January 23, 2008, respectively, dismissed, without costs, as subsumed in the appeal from the final judgment.
After a trial spanning 11 court dates, Civil Court awarded a possessory judgment to petitioner-landlords in this owner occupancy proceeding ( see Rent Stabilization Code [ 9 NYCRR] § 2524.4[a]), finding "entirely credible" the first-named landlords testimony that he genuinely intends to occupy the stabilized apartments here at issue as part of an overall, documented plan to utilize the fourth and fifth floors of the brownstone building as a combined duplex apartment. The court's fact-based, credibility determination on the pivotal issue of good faith represents a fair interpretation of the evidence ( see Powers v Babic, 177 AD2d 432), based as it was on such stated factors as the building's close proximity to landlord's Manhattan office, his current living situation in an apartment too cramped to allow his two sons to "comfortably visit him," his retention of an architect and contractor to effectuate the major remodeling work, and his financial wherewithal "to pay for the planned construction." Contrary to tenants' present contention, the testimony of one or both of landlord's sons was not required to establish a prima facie case ( see Horsford v Bacott, 32 AD3d 310, affd 8 NY3d 824). Nor do we have cause to disturb the court's express finding that tenants proffered no "persuasive" evidence in support of their affirmative defense of retaliatory eviction.
We have considered tenants' remaining points and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.