Opinion
570185/09 PRESENT: Shulman, J.P., Hunter, Jr., Ling-Cohan, JJ.
05-22-2015
Norfolk Development LLC, Petitioner-Landlord-Respondent, v. Elizabeth Kee, a/k/a Rita Elizabeth Kee, Respondent-Tenant-Appellant.
Tenant appeals from a final judgment of the Civil Court of the City of New York, New York County (Sabrina B. Kraus, J.), entered June 12, 2013, after a nonjury trial, which awarded possession to landlord in a holdover summary proceeding.
Final judgment (Sabrina B. Kraus, J.), entered June 12, 2013, affirmed, with $25 costs, for the reasons stated by Sabrina B. Kraus, J. at Civil Court.
We find no cause to disturb the trial court's fact-laden determination that tenant did not maintain the Norfolk Street rent stabilized apartment here at issue as her primary residence. The voluminous trial record showed and the court expressly found that tenant did not maintain a substantial, physical nexus to the apartment for actual living purposes during the relevant 2004-2006 period; had relocated elsewhere with her then-boyfriend, one Tuscano; and had installed another individual to occupy the apartment in her absence. The credible evidence supporting the court's determination includes numerous police reports arising from domestic incidents between tenant and Tuscano during the relevant period, referencing a Duane Street apartment as their shared residence; and an order of protection obtained by tenant - based upon her representation to Criminal Court that she lived at the Duane Street apartment with Tuscano - excluding Tuscano from that residence and granting tenant sole and exclusive possession thereof.
The documentary indicia of residency at the Norfolk Street apartment relied upon by tenant are outweighed by the overwhelming credible evidence of her failure to use the premises for actual living purposes. This is particularly true since, as the court found, tenant, a real estate professional, sought to maintain a "paper trail" connecting her to the subject apartment (see Emel Realty Corp. v Carey, 288 AD2d 163 [2001]). Moreover, the trial court, having heard tenant's testimony and observed her demeanor, was entitled to discredit her testimony (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]), upon its assessment thatshe "had absolutely no credibility as a witness . . . [she] repeatedly lied and contradicted herself throughout the course of this six-year litigation . . . [and] intentionally attempted to prevent the truth from being known by the court."
We have examined tenant's other arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: May 22, 2015