Opinion
No. 2014–472QC.
10-15-2015
Michael MOY, Appellant, v. Ambu KARKI, Respondent.
Opinion
Appeal from a decision of the Civil Court of the City of New York, Queens County (John S. Lansden, J.), dated August 1, 2013, deemed from a final judgment of the same court entered August 1, 2013 (see CPLR 5512[a] ). The final judgment, insofar as appealed from, after a nonjury trial, dismissed the petition in a holdover summary proceeding.
ORDERED that the final judgment, insofar as appealed from, is reversed, without costs, and the matter is remitted to the Civil Court for the entry of a final judgment awarding landlord possession.
At a nonjury trial of this owner-use holdover proceeding, landlord testified that he sought possession of the subject apartment to live in with his wife, daughter and son. The nonrenewal notice stated that he sought possession to live with those family members, as well as a second daughter. Following the trial, the Civil Court dismissed the petition, finding that landlord did not prove the allegations set forth in the predicate notice because he admitted that he did not intend for his second daughter to live in the subject apartment, and that landlord did not prove a good faith intent to occupy the premises within a reasonable time because he did not know when his wife and son would be moving to the United States from China.
In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499 1983; Hamilton v. Blackwood, 85 AD3d 1116 2011; Zeltser v. Sacerdote, 52 AD3d 824, 826 2008 ). Regardless of when landlord's wife and son might be able to move into the subject apartment, there is no basis on this record to conclude that landlord himself did not intend to take immediate occupancy of the subject apartment with his daughter. Consequently, we find that landlord met his burden at trial to demonstrate his good faith intention to obtain possession for his personal use (see Hirsch v. Stewart, 63 AD3d 74 2009; Horsford v. Bacott, 32 AD3d 310 2006, affd 8 NY3d 874 2007 ). Furthermore, exact correspondence between the allegations set out in a predicate notice and the proof at trial is not required (see Gussow v. Hornblower, 4 Misc.3d 131[A], 2004 N.Y. Slip Op 50706[U] [App Term, 1st Dept 2004] ).
Accordingly, the final judgment, insofar as appealed from, is reversed, and the matter is remitted to the Civil Court for the entry of a final judgment awarding landlord possession.
PESCE, P.J., WESTON AND ELLIOT, JJ., concur.