300 W. 106th St. Corp. v Rosenthal (2005 NY Slip Op 52160(U))

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300 W. 106th St. Corp. v Rosenthal

2005 NY Slip Op 52160(U) [10 Misc 3d 137(A)]

Decided on December 29, 2005

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 29, 2005

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: McCooe, J.P., Davis, Gangel-Jacob, JJ
570668/05.

300 W. 106th St. Corp., No. Petitioner-Landlord-Appellant,

against

Susan Rosenthal, Respondent-Tenant-Respondent.

Landlord appeals from a final judgment of the Civil Court, New York County (Anthony J. Fiorella, Jr., J.), entered on or about April 13, 2004, after a nonjury trial, which dismissed the petition in a nonprimary residence holdover proceeding.

PER CURIAM:

Final judgment (Anthony J. Fiorella, Jr., J.), entered on or about April 13, 2004, affirmed, with $25 costs.

We agree with Civil Court's determination that landlord did not meet its burden of proving nonprimary residence (see Glenbriar Co. v Lipsman, 11 AD3d 352 [2004], affd NY3d [2005], 2005 NY Slip Op 07730. The trial evidence, fairly interpreted, supports the court's finding that tenant's relocation to California was temporary and that she always intended to and, in fact, did return to the subject stabilized apartment.

This constitutes the decision and order of the court.
Decision Date: December 29, 2005