Appeal from a decision of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), dated September 29, 2006. The decision, after a nonjury trial, dismissed the petition in a holdover summary proceeding. The notice of appeal from the decision is deemed a premature notice of appeal from so much of the final judgment entered February 8, 2007 as dismissed the petition.

Final judgment, insofar as reviewed, affirmed without costs.

Landlord-appellant brought this holdover summary proceeding to recover possession of a rent-stabilized apartment from tenants-respondents. The proceeding was premised on landlord's claim that tenants Matilda Belley (Matilda) and Walter Belley did not occupy the apartment as their primary residence (see Rent Stabilization Code [9 NYCRR] § 2524.4 [c]).

At trial, landlord asserted that tenants had relocated their primary residence to a one-family house situated at 83-37 261 Street, Glen Oaks (house). In support of the nonprimary-residence claim, landlord presented tenants' utility records evincing low usage at the apartment. Landlord also presented the testimony of a private investigator who video-recorded tenants arriving at the apartment and at the house. According to the investigator, the video demonstrated tenants' presence for a majority of the time at the house and not at the apartment during the [*2]periods of April 2004 through March 2005, and April 2005 through July 2005.

In response, Matilda testified that she has resided at the subject apartment for 41 years and that she inherited the house in June 2003, when her sister passed away. She averred that her intention was to maintain the apartment as her primary residence, and that she had continued to list the apartment address on her driver's license, automobile registration, insurance accounts, social security records, voting records and her federal and local tax returns. Copies of the records were introduced into evidence. Landlord conceded that tenants continue to receive mail at the apartment.

The trial court found Matilda's explanation for the low utility usage credible and dismissed the petition.

Section 2520.6 (u) of the Rent Stabilization Code considers the following factors relevant on the issue of primary residence: (1) specification of an address on any tax return, motor vehicle registration, driver's license or any other document filed with a public agency; (2) use of an address for voting; (3) occupancy for less than 183 days in the most recent calendar year and (4) whether the claimed premises are sublet to another occupant.

On the record before the court, the documents identified in section 2520.6 (u)
corroborated tenants' claim of primary residence. Furthermore, it was within the discretion of the trial court to credit the veracity of Matilda when she offered explanations for her visits to the house in Glen Oaks and the low usage of utilities at the apartment. Although an appellate court enjoys the power to review the trial record, due regard must be given to the decision of the fact finder, who is in a position to assess the credibility of the witnesses (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]; Matter of Poggemeyer, 87 AD2d 822 [1982]). Accordingly, the final judgment is affirmed.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: October 27, 2008