After considering the testimony and the other evidence at the trial of this holdover proceeding, the court makes the following findings of fact, reaches the following conclusions of law, and grants respondents a judgment of possession dismissing this proceeding. Upon service of a copy of the judgment with notice of entry respondents may move upon papers setting forth the particulars thereof for an award of attorney's fees and such other relief as may be appropriate.

The court finds that the premises at issue (apt. 1L at 126 Guernsey Street) is a rent-[*2]stabilized apartment, that petitioner is the landlord, that respondent Pasan is the tenant, and that their most recent lease renewal expired on September 30, 2012. Petitioner asserts that he need not renew respondent's tenancy because, and in conformity with Rent Stabilization Code [9 NYCRR] Section 2524.4, he seeks to recover possession of the premises for the use of a member of his immediate family. More specifically, and as set out in the predicate notice dated June 13, 2012, petitioner asserts that he wants to recover possession so that his daughter Izabel Pawlowski (then Drapala but married three days later to Marcin Pawlowski) might have the premises for her primary residence.

To prevail here petitioner had to establish his good faith desire to recover possession of the premises for his daughter's occupancy as her primary residence. Nestor v Britt, 213 AD2d 255 (1 st Dep't, 1995); Riley v Ansis, 28 Misc 3d 140(A), (App Term, 1 st Dep't, 2010), lv. den. 2011 NY Slip Op 67814(U) (1 st Dep't, 2011). As evidence of the requisite good faith, petitioner offered his own testimony and that of his daughter. He testified that he wanted his daughter and son-in-law to have the apartment. He testified that he would not require them to pay rent and that he would want in return only for his son-in-law to perform janitorial duties at the six-unit building in which the premises is located. He acknowledged that his daughter would perform managerial duties, such as collecting rent and filing building and rent registrations with the appropriate authorities, but that doing so would be no more than a continuation of what she was already doing for petitioner's real estate business.

His daughter testified similarly, and that she preferred the premises to the apartment in which she and her husband were living because, among other things, the premises was larger and she would have access to a backyard.

This testimony was plausible. However, after considering all of the evidence, the court does not find that it is more likely than not that petitioner had and has a good faith desire to recover possession of the premises for his daughter's use as her primary residence. The four considerations most important to the court are described below.

The first is that in 2006 petitioner sued on the same ground to terminate another tenant's occupancy of another apartment (apt. 3L) in the same building yet Izabela Drapala (now, Pawlowski) did not move in when petitioner gained possession of thereof. In the predicate notice of termination dated November 14, 2005 on which petitioner based the lawsuit in this court under the caption Drapala v Nasari, index number 60902/06, petitioner asserted: "I need your apartment for my daughter. Her name is Izabela Drapala. She is 22 years old and single. She presently resides with me in New Jersey. She currently attends Baruch Business College in Manhattan. She must take a bus and trains to get to school Monday through Thursday. She will be graduating in December, 2005 as a financial analyst and will be seeking employment in New York City. Further, she desires to live in Brooklyn, New York as it will be close to Manhattan. As a single 22 year old young woman she desires her own living space independent from me and [*3]my wife."

By a stipulation of settlement "so ordered" in that proceeding on November 13, 2006 the parties agreed, among other things, that the tenant would move out by August 31, 2007 and in return that petitioner would waive payment of all rent through that date and that petitioner would pay to the tenant $25,000.00. Yet when petitioner regained possession of the apartment Izabela Drapala did not move in.

As an explanation for not moving in at that time, Ms. Pawlowski testified that by then she had moved into Marcin Pawlowski's apartment, only a few blocks away at 247 N. 8 th Street. However, she could not remember with any specificity the date of that event; she testified only that it occurred in 2006-2007. However, at item 5(b) of petitioner's Responses to Demands dated February 1, 2013, petitioner states that this event took place in 2009. The court declines to credit this proffered explanation for not taking possession of the premises.

A second consideration is that in 2001 petitioner sued to terminate on the same ground another tenant's occupancy of another apartment (apt. 1R) in the same building. In the predicate notice of termination dated May 29, 2001 on which petitioner based the lawsuit in this court under the caption Drapala v Lopez, index number 95018/01, petitioner asserted "IZABELA DRAPALA, owner's daughter, is in need of the subject premises for her home. She is unhappy in her present apartment." Petitioner also represented that "IZABELA DRAPALA will use and occupy the apartment as her primary residence in the City of New York for at least three (3) years from the date possession is obtained."

The court notes that at that time Ms. Drapala was finishing her senior year in high school. The court notes as well that although petitioner did not recover in that proceeding possession of the apartment, it did become vacant 8 or 9 years later but Ms. Drapala did not move in.

A third consideration is that Ms. Pawlowski testified that although she and her husband now live only a few blocks away from the premises, they would prefer to live at the premises because it is larger. Yet the evidence presented shows that the apartments have similar layouts and seem to be roughly the same size; measured by square footage, the premises may be somewhat smaller. The court finds that this testimony was less than accurate and gives it no probative weight.

A fourth consideration is that is that Ms. Pawlowski testified that she preferred the premises because there was a backyard and her father had promised to remove part of the building's rear wall and to build stairs to the backyard from the rear of the premises. Yet no architect or engineer had been engaged to draw plans for that purpose and no permit to do this [*4]work had been sought from the appropriate authorities. The court declines to give significant probative weight to this testimony.

The court holds that petitioner did not establish the requisite good faith by a preponderance of the evidence, and accordingly the court grants the relief set out above.

The court will mail copies of this decision and order to the parties, and they are requested to retrieve their exhibits by April 2, 2015.