Opinion
No. 2015–1582 N C.
03-24-2017
WRG ACQUISITION XIII, LLC, Respondent, v. Andrew STRASSER, Appellant, and "John Doe" and "Jane Doe," Undertenants.
Appeal from a final judgment of the District Court of Nassau County, First District (Eric Bjorneby, J.; op 45 Misc.3d 1010 ), entered November 20, 2014. The final judgment, after a nonjury trial, awarded landlord possession in a summary proceeding brought pursuant to RPAPL 713(3).
ORDERED that the final judgment is affirmed, without costs.
At a nonjury trial of this summary proceeding commenced pursuant to RPAPL 713(3), occupant defended on the ground that he had a right to succeed to the tenancy of his sister, the rent-regulated tenant (see Emergency Tenant Protection Regulations [9 NYCRR] § 2503.5[d][1] ). After the trial, the District Court awarded possession to landlord.
To establish his defense, it was occupant's burden to prove that he had resided with his sister in the subject apartment as his primary residence for not less than two years prior to the time that she permanently vacated the apartment (id.; see 68–74 Thompson Realty, LLC v. McNally, 71 AD3d 411 [2010] ). The court found that occupant had "not met his burden to establish the necessary two year residence." The court further found that, even if occupant had established his residence in the apartment for the requisite two-year period, he was not entitled to succeed to the rent-regulated tenancy in view of his omission from the lease and from his sister's Section 8 family composition certifications.
The decision of a fact-finding court should not be disturbed upon appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence (see Claridge Gardens v. Menotti, 160 A.D.2d 544 [1990] ). Furthermore, 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] ). Here, there is no basis to disturb the District Court's finding that the testimony proffered by occupant and his witnesses was insufficient to demonstrate that his primary residence had been in the subject apartment during the two-year period, particularly in light of his admission that he had used a different address for his driver's license, car registration, and car insurance, as well as for other official documents typically used to demonstrate primary residence (cf. 310 E. 23rd LLC v. Colvin, 41 AD3d 149 [2007] ). Under the circumstances, we need not consider the second basis for the District Court's decision.
Accordingly, the final judgment is affirmed.
IANNACCI, J.P., and BRANDS, J., concur.