Appeal by tenant Louise Mintz and undertenant Scott Mintz from a final judgment of the Civil Court of the City of New York, Kings County (Marcia J. Sikowitz, J.), entered September 22, 2005. The final judgment, after a nonjury trial, awarded possession to landlord in a holdover summary proceeding.

Appeal by tenant Louise Mintz dismissed for failure to prosecute.

Final judgment, insofar as reviewed, affirmed without costs.

In this nonprimary-residence holdover proceeding, the record supports the determination of the court below that Scott Mintz failed to meet his affirmative burden to establish succession rights to the subject apartment (see Rent Stabilization Code [9 NYCRR] § 2523.5 [b] [1]). Although documentary evidence is not necessary to establish the required two years of residency (see A & K Sanford Realty Corp. v Galvez, 8 Misc 3d 133[A], 2005 NY Slip Op 51156[U] [App [*2]Term, 2d & 11th Jud Dists]), the court was entitled to find, on the evidence presented, that appellant failed to establish by "a preponderance of credible personal testimony" (300 E. 34th St. Co. v Habeeb, 248 AD2d 50, 55 [1997]) that the subject apartment was his primary residence for the two-year period. The findings by the court below, which was in a position to assess the evidence and credibility of the witnesses, are entitled to deference and will not be disturbed upon appeal (id. at 54-55; see Claridge Gardens v Menotti, 160 AD2d 544 [1990]). Accordingly, the final judgment is affirmed.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: March 28, 2007