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Sp 10 Downing, LLC v. Frederick Gazzoli

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT


April 28, 2011

SP 10 DOWNING, LLC,
PETITIONER-RESPONDENT,
v.
FREDERICK GAZZOLI, RESPONDENT-APPELLANT,
AND "JOHN DOE" AND "JANE DOE,"
RESPONDENTS.

Respondent Frederick Gazzoli appeals from a final judgment of the Civil Court of the City of New York, New York County (Kathryn E. Freed, J.), entered on or about April 16, 2010, after a non-jury trial, which awarded possession to petitioner in a holdover summary proceeding.

Per curiam.

SP 10 Downing, LLC v Gazzoli

Decided on April 28, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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: Hunter, Jr., J.P., Schoenfeld, Torres, JJ

Final judgment (Kathryn E. Freed, J.), entered on or about April 16, 2010, affirmed, with $25 costs.

The trial court's fact-based determination that appellant failed to meet his affirmative obligation to establish succession rights to the subject rent controlled tenancy (see New York City Rent and Eviction Regulations [9 NYCRR] § 2204.6[d]), represents a fair interpretation of the evidence (see 318 E. 93, LLC v Ward, 276 AD2d 277 [2000]; Fanny Grunberg & Assoc., LLP. v Hershberger, 12 Misc 3d 132[A], 2006 NY Slip Op 51169[U] [2006]; cf. Morton St. Assoc. v Volpe, 19 Misc 3d 126[A], 2008 NY Slip Op 50483[U] [2008]). Appellant failed to establish that he primarily resided with the record tenant, his elderly mother, at the subject one-bedroom apartment for the requisite two-year period immediately preceding her death.

To the contrary, the evidence at the hearing undisputedly showed that appellant's mother shared the apartment with her home health aide at all relevant times, and that appellant resided and worked in Paris, France, for approximately six years prior to his mother's death. Nor can it be said, on this record, that appellant's residency with his mother at the apartment was interrupted by a "temporary relocation from the housing accommodation" within the protective aegis of the regulations (9 NYCRR § 2204.6[d][1][iv], [vi]; see 315 E. 72nd St. Owners, Inc. v Siegel, 22 Misc 3d 10 [2008]).

Appellant's remaining contentions are without merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: April 28, 2011

20110428

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