Landlord appeals from 1) a final judgment of the Civil Court of the City of New York, New York County (Jean T. Schneider, J.), entered on or about March 30, 2007, after a nonjury trial, in favor of tenant dismissing the petition in a holdover summary proceeding, and 2) an order (same court and Judge), dated April 27, 2007, which granted tenant's motion for attorneys' fees.

Per Curiam.

Final judgment (Jean T. Schneider, J.), entered on or about March 30, 2007, and order (Jean T. Schneider), dated April 27, 2007, affirmed, with one bill of $25 costs.

The trial court's fact-laden determination that this long-term (43 year) rent controlled tenant maintains her primary residence at the subject West 72nd Street apartment represents a fair interpretation of the evidence, (see 318 East 93, LLC v Ward, 276 AD2d 277 [2000]), and is not disturbed. Tenant's acknowledged involuntary absence for medical reasons from the apartment from January 2004 through January 2006 was excusable. Tenant's "institutionalization was transitory, not permanent in nature," since it was designed to "prepare [her] for a return to independent living;" there was no "abandonment of the premises" and "a resumption of occupancy has taken place" (Katz v Gelman, 177 Misc 2d 83, 84 [1998]). During her temporary absence, tenant maintained all of her furniture and personal belongings in the subject apartment, received her mail there, and left the medical facilities on a monthly basis to return to the apartment.

We have considered landlord's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
Decision Date: December 19, 2008