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17-19 Bleecker Street, LLC, Petitioner-Landlord-Appellant v. Cynthia McAdams

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT


November 29, 2010

17-19 BLEECKER STREET, LLC, PETITIONER-LANDLORD-APPELLANT,
v.
CYNTHIA MCADAMS, RESPONDENT-TENANT-RESPONDENT, AND ALEXANDROS WASHBURN, "JOHN DOE AND "JANE DOE," RESPONDENTS-UNDERTENANTS.

Landlord appeals from a final judgment of the Civil Court of the City of New York, New York County (Laurie L. Lau, J.), entered on or about May 26, 2009, after a non-jury trial, which dismissed the petition in a holdover summary proceeding.

Per curiam.

17-19 Bleecker St., LLC v McAdams

Decided on November 29, 2010

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: McKeon, P.J., Schoenfeld, Shulman, JJ

Final judgment (Laurie L. Lau, J.), entered on or about May 26, 2009, reversed, with $30 costs, and final judgment of possession awarded to landlord. Execution of the warrant of eviction shall be stayed for 30 days after service of a copy of this order with notice of entry.

Based upon the evidence adduced at trial and in the exercise of our authority to render the judgment warranted by the facts (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]), we conclude that landlord established that tenant did not utilize the subject rent stabilized apartment as her primary residence. The trial evidence demonstrated that tenant (1) maintained an alternate residence in California (since 1972) to which tenant maintained "significant ties" (see generally Sommer v Ann Turkel, Inc., 137 Misc 2d 7 [1987]; cf. Rose v Mallare, NYLJ, June 7, 1993, at 28, col 6 [App Term, 1st Dept]; Jocar Realty Co., Inc. v Sigel, NYLJ, February 9, 1990, at 21, col 2 [App Term, lst Dept]); (2) possessed a California driver's license listing the address of the California residence (see Rent Stabilization Code [9 NYCRR] § 2520.6[u][1]); (3) listed the address of the California residence on certain bank and credit card accounts; (4) occupied the subject apartment for an aggregate of less than 183 days in the relevant calendar year (see § 2520.6[u][3]); and (5) sublet the apartment (see § 2520.6[u][4]) for profit. Therefore, the trial evidence established that tenant did not maintain an "ongoing, substantial, physical nexus" with the subject apartment for actual living purposes (TOA Constr. Co., Inc. v Tsitsires,54 AD3d 109, 113 [2008]), and judgment should have been awarded to landlord on its claim for possession.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: November 29, 2010

20101129

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