| 184-188 Claremont Invs., LLC v Nelson |
| 2015 NY Slip Op 50235(U) [46 Misc 3d 148(A)] |
| Decided on March 2, 2015 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Tenant, as limited by his briefs, appeals from (1) a final judgment of the Civil Court of the City of New York, New York County (Lynn R. Kotler, J.), entered May 19, 2014, after a jury trial, which awarded possession to landlord in a holdover summary proceeding, and (2) so much of an order (same court and Judge), dated May 12, 2014, as denied his motion for judgment notwithstanding the verdict or for a new trial.
Per curiam.
Final judgment (Lynn R. Kotler, J. and jury), entered May 19, 2014, affirmed, with $25 costs. Appeal from order (Lynn R. Kotler, J.), dated March 19, 2014, dismissed, without costs, as subsumed in the appeal from the final judgment. The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the final judgment (see CPLR 5501[a][1]).
The jury's finding that tenant did not primarily reside at the stabilized Manhattan apartment here at issue comports with the weight of the trial evidence, which showed that tenant was absent from the apartment for no less than nine months in 2009, eight months in 2010, and the first six months of 2011 (returning shortly before landlord's commencement of this proceeding), during which time he lived predominantly in Argentina and permitted others to occupy the premises in his absence. That tenant may have been "working on . . . and performing" music or otherwise employed during his lengthy stays in Buenos Aires does not serve to excuse his prolonged physical absences from the subject apartment, or so the jury reasonably could find. Nor was landlord required to prove that tenant had a specific alternative primary residence elsewhere (see TOA Constr. Co. v Tsitsires, 54 AD3d 109 [2008]), particularly "where as here, tenant is shown to spend considerable amounts of time at several different [locales]" (Emel Realty Corp. v Carey, 188 Misc 2d 280 [2001], affd 288 AD2d 163 [2001]).