[*1]
Moy v Karki
2015 NY Slip Op 51558(U) [49 Misc 3d 138(A)]
Decided on October 15, 2015
Appellate Term, Second 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 15, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON and ELLIOT, JJ.
2014-472 Q C

Michael Moy, Appellant,

against

Ambu Karki, Respondent.


Appeal from a decision of the Civil Court of the City of New York, Queens County (John S. Lansden, J.), dated August 1, 2013, deemed from a final judgment of the same court entered August 1, 2013 (see CPLR 5512 [a]). The final judgment, insofar as appealed from, after a nonjury trial, dismissed the petition in a holdover summary proceeding.

ORDERED that the final judgment, insofar as appealed from, is reversed, without costs, and the matter is remitted to the Civil Court for the entry of a final judgment awarding landlord possession.

At a nonjury trial of this owner-use holdover proceeding, landlord testified that he sought possession of the subject apartment to live in with his wife, daughter and son. The nonrenewal notice stated that he sought possession to live with those family members, as well as a second daughter. Following the trial, the Civil Court dismissed the petition, finding that landlord did not prove the allegations set forth in the predicate notice because he admitted that he did not intend for his second daughter to live in the subject apartment, and that landlord did not prove a good faith intent to occupy the premises within a reasonable time because he did not know when his wife and son would be moving to the United States from China.

In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824, 826 [2008]). Regardless of when landlord's wife and son might be able to move into the subject apartment, there is no basis on this record to conclude that landlord himself did not intend to take immediate occupancy of the subject apartment with his daughter. Consequently, we find that landlord met his burden at trial to demonstrate his good faith intention to obtain possession for his personal use (see Hirsch v Stewart, 63 AD3d 74 [2009]; Horsford v Bacott, 32 AD3d 310 [2006], affd 8 NY3d 874 [2007]). Furthermore, exact correspondence between the allegations set out in a predicate notice and the proof at trial is not required (see Gussow v Hornblower, 4 Misc 3d 131[A], 2004 NY Slip Op 50706[U] [App Term, 1st Dept 2004]).

Accordingly, the final judgment, insofar as appealed from, is reversed, and the matter is remitted to the Civil Court for the entry of a final judgment awarding landlord possession.

Pesce, P.J., Weston and Elliot, JJ., concur.


Decision Date: October 15, 2015