Opinion
03-03-2003
ROCKY 116 L.L.C., Respondent, v. STANLEY WESTON, Appellant, et al., Respondents.
Robert E. Levy, New York City, for appellant. Belkin Burden Wenig & Goldman, LLP, New York City (Joseph Burden, Magda L. Cruz and Jay H. Berg of counsel), for respondent. McCOOE, J.P., DAVIS and SCHOENFELD, JJ., concur.
OPINION OF THE COURT
Per Curiam. Final judgment entered on or about June 17, 2002 affirmed, with $25 costs. The trial evidence, fairly interpreted, supports Civil Court's conclusion that tenant does not primarily reside in the subject studio apartment. The record clearly establishes that tenant— along with a woman who tenant described at trial as his "long-term girlfriend"—spent substantial amounts of time throughout the tenancy in a series of residences other than the studio apartment here at issue. Among the alternate residences used by tenant and his companion were two separate two-bedroom apartments overlooking Central Park, one located in the subject building (116 Central Park South) and the other located nearby (128 Central Park South), an apartment in Nice, France, and a "country home" in Garrison, New York. This varied and far-flung residency pattern was confirmed in large measure in the application submitted by tenant in connection with his 1996 rental of the two-bedroom apartment located at 128 Central Park South, in which tenant stated his intention to occupy that apartment with a named "Live-in Companion (12-years)," identified his "Current Address" as the Garrison, New York, property without referencing the subject studio apartment, explained his reason for moving into the two-bedroom apartment as "selling country home," and listed among his "Banking * * * References" checking and securities accounts maintained in a Monte Carlo bank. Evaluating the entire history of the tenancy (see, 615 Co. v Mikeska, 75 NY2d 987, 988 [1990]), including the so-ordered stipulation entered into by tenant and the predecessor landlord purporting to waive the rent stabilization primary residence requirements (see, Rocky 116 v Weston, 284 AD2d 139 [2001]), we agree with the trial court that tenant's limited occupancy of the subject studio apartment did not constitute the type of "`ongoing, substantial physical nexus with the controlled premises for actual living purposes' * * * that would justify affording the tenancy continued protection under the rent stabilization laws." (Berwick Land Corp. v Mucelli, 249 AD2d 18, 18-19 [1998].) Any "uncertainty as to which of the alternate addresses shown to be used by tenant actually constituted [his] principal residence should not serve to deprive the landlord of its possessory remedy on nonprimary residence grounds otherwise firmly established at trial." (Emel Realty Corp. v Carey, 188 Misc 2d 280, 282-283 [2001], affd 288 AD2d 163 [2001].) The tenant's present challenge to the sufficiency of the notice of nonrenewal is raised for the first time on appeal, and thus is not properly before us (see, Claridge Gardens v Menotti, 160 AD2d 544, 545 [1990]). In any event, the nonrenewal notice adequately set forth the factual allegations and legal basis for the proceeding, and was reasonable "in view of the attendant circumstances" (Hughes v Lenox Hill Hosp., 226 AD2d 4, 18 [1996], lv dismissed and denied in part 90 NY2d 829 [1997]). Contrary to tenant's present contention, the notice was not "unreasonable" or "misleading in [its] omission" because it specified only a single alternate address as tenant's alleged primary residence—the apartment at 128 Central Park South. "Absolute synchronicity with the evidence ultimately developed at trial is not required." (Seventh FGP v Yee, NYLJ, July 13, 2001, at 18, cols 1, 2 [App Term, 1st Dept], lv denied 2001 NY App Div LEXIS 9218 [1st Dept].)