406 W. 47th St. HDFC v Picot
2003 NY Slip Op 51471(U)
Decided on November 25, 2003
Appellate Term, First Department


[*1]
This opinion is uncorrected and will not be published in the Official Reports.

Digest-Index Classification:
Landlord and Tenant—Rent Regulation—Primary Residence

Decided on November 25, 2003
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT:
HON. WILLIAM J. DAVIS, J.P.
HON. PHYLLIS GANGEL-JACOB
HON. MARTIN SCHOENFELD, Justices.
570144/03

406 WEST 47TH STREET HDFC, Petitioner-Landlord-Respondent,

against

ADRIA PICOT,


[*2]Respondent-Tenant-Appellant, "JOHN DOE," and "JANE DOE," Respondents-Undertenants.

Tenant appeals from a final judgment of the Civil Court, New York County, entered November 1, 2002 after a nonjury trial (Jean T. Schneider, J.) awarding landlord possession and a money judgment in the sum of $2,990 in a nonprimary residence holdover proceeding.


PER CURIAM:

Final judgment entered November 1, 2002 (Jean T. Schneider, J.) affirmed, without costs.

Pursuant to the proprietary lease appurtenant to tenant's HDFC apartment, tenant was required to occupy the premises as her primary residence. The trial evidence supports Civil Court's finding that tenant primarily resides in Florida, where her adult daughter and mother reside. Tenant was employed in Florida in 1998 and 1999 and, [*3]while she filed federal income tax returns for these years, she did not file a New York City resident income tax return. Virtually all of tenant's in-person banking transactions in 1999 and 2000 occurred in Florida, and her driver's license and motor vehicle registration reference the Florida address. Tenant also had a series of "roommates" in the New York City apartment, one of whom was charged a rental amount substantially in excess of the monthly maintenance for the subject low-income cooperative. Further, there was testimony at trial that on tenant's infrequent appearances in the building, she stayed at her uncle's adjacent apartment. We therefore have no cause to disturb the trial court's resolution of the issues of fact and credibility litigated below (see, Emel Realty Corp. v Carey, 288 AD2d
163 [2001]; Claridge Gardens v Menotti, 160 AD2d 544 [1990]).

This constitutes the decision and order of the court.