Opinion
570441/05.
Decided March 22, 2006.
Landlord appeals from a final judgment of the Civil Court, New York County (Cyril K. Bedford, J.), entered June 24, 2004, after a nonjury trial, dismissing the petition in a nonprimary residence proceeding.
Final judgment (Cyril K. Bedford, J.), entered June 24, 2004, affirmed, with $25 costs.
PRESENT: McCOOE, J.P., GANGEL-JACOB, SCHOENFELD, JJ.
Giving due deference to the trial court's findings of fact and credibility ( see Claridge Gardens, Inc. v. Menotti, 160 AD2d 554), the determination that tenant maintained an ongoing presence at the subject Manhattan apartment comports with the weight of the evidence. The record shows that tenant lived in the apartment for three years before he married, and continued to live in the apartment after his wife departed. Although tenant and his estranged wife jointly owned property in Ridgefield, New Jersey, the evidence, fairly interpreted, support the court's finding that tenant primarily resided in the subject apartment. While tenant acknowledged that he commuted on a regular basis to the New Jersey residence to help care for his minor daughter, he testified that he returned to the apartment to sleep every night. Tenant's temporary absences, due to marital problems, did not sever his primary ties to the New York apartment. The fact that certain documentation, including joint tax returns and credit cards, listed the New Jersey address is not fatal to tenant's primary residence claim, and does not, in these circumstances, preponderate over tenant's plausible and credited testimonial evidence ( see 23 Jones St. Assoc. v. Keebler-Beretta, 284 AD2d 109; Village Dev. Assoc. v. Walker, 282 AD2d 369). On this record, and evaluating the entire history of the tenancy ( see 615 Co. v. Mikesa, 75 NY2d 987, 988), we agree that landlord failed in its burden to establish that tenant did not primarily reside in the subject apartment.
This constitutes the decision and order of the court.