Opinion
No. 570239/11.
2012-05-9
EXTELL 609 WEST 137TH STREET LLC, Petitioner–Landlord v. Marino BONILLA–MOREL a/d/a Marino Antonio Bonilla–Morel a/k/a Marino Bonilla, Respondent–Tenant–Respondent, and Manuela Manguela, Eddy Estevez, Lowdin Estevez, Ivan Cobos, “John Doe” and/or “Jane Doe,” Respondents–Undertenants.
Landlord appeals from a final judgment of the Civil Court of the City of New York, New York County (Timmie Erin Elsner, J.), entered on or about October 8, 2010, after a nonjury trial, in favor of tenant dismissing the petition in a holdover summary proceeding.
Present: SCHOENFELD, J.P., TORRES, HUNTER, JR., JJ.
PER CURIAM.
Final judgment (Timmie Erin Elsner, J.), entered on or about October 8, 2010, affirmed, with $25 costs.
The evidence, fairly interpreted, support's the trial court's fact-laden determination that the rent stabilized tenant primarily resides at the subject West 137th Street apartment and not, as landlord urges, at the LaSalle Street apartment rented by his girlfriend. Based largely upon the credited testimony of tenant and his witnesses, the court expressly found that tenant “continued to maintain a substantial physical nexus to the premises,” where he was seen almost daily, kept his furniture, clothing and other belongings, and that he “continuously designated the premises as his address” on various documents. These findings, resting in large measure on considerations relating to the credibility of witnesses, are entitled to deference on appeal ( see Thoreson v. Penthouse Intl., 80 N.Y.2d 490, 495 [1992] ). That certain documents relied upon by landlord listed the LaSalle Street apartment did not, in these circumstances, preponderate over the plausible and fully credited testimony of tenant and his witnesses ( see 23 Jones St. Assoc. v. Keebler–Beretta, 284 A.D.2d 109 [2001];Dezer v. Brody, 29 Misc.3d 26 [2010] ).
The record discloses no evidentiary error warranting reversal. Whether to draw a negative inference from tenant's failure to call his girlfriend as a witness was within the factfinder's discretion ( see 318 East 93, LLC v. Ward, 276 A.D.2d 277, 278 [2000] ) and we find no abuse of that discretion here. We have considered landlord's remaining arguments and find them unavailing.