Newmont Props., LP v Callender

Supreme Court, Appellate Term, Second Department, 2d, 11th And 13th Judicial Districts

Decided on March 20, 2026

2024-1051 K C

Present: : Wavny Toussaint, P.J., ChereÉ A. Buggs, Joanne D. QuiÑOnes, JJ

New York Legal Assistance Group (Jared Riser and Lisa Rivera of counsel), for appellant.

Law Office of Scott D. Gross (Scott D. Gross of counsel), for respondent.

Appeal from a final judgment of the Civil Court of the City of New York, Kings County (Remy Smith, J.), entered August 2, 2024. The final judgment, after a nonjury trial, awarded landlord possession in a licensee summary proceeding.

ORDERED that the final judgment is affirmed, without costs.

In this licensee proceeding (RPAPL 713 [7]) against occupant, the wife of the tenant of a rent-stabilized apartment who died in December 2019, occupant interposed an answer asserting an affirmative defense of succession rights (see Rent Stabilization Code [9 NYCRR] [RSC] § 2523.5 [b] [1]). Following a nonjury trial, the Civil Court (Remy Smith, J.) determined that occupant did not establish that she was entitled to succession. A final judgment was entered on August 2, 2024.

No family member of a rent-stabilized tenant shall be evicted from the tenant's apartment if the family member has resided with the tenant in the apartment as a primary residence for at least two years prior to the tenant's permanent removal from the premises (see RSC §§ 2520.6 [o]; 2523.5 [b] [1]). The burden of presenting legally sufficient proof to establish contemporaneous residency with the tenant rests with the party claiming succession rights (see 68-74 Thompson Realty, LLC v McNally, 71 AD3d 411 [2010]; Gottlieb v Licursi, 191 AD2d 256 [1993]). The traditional indicia of primary residence, including driver's license, voter's registration, income tax returns, telephone [*2]records and bank statements, would be competent evidence to establish a period of residency (see Lesser v Park 65 Realty Corp., 140 AD2d 169, 174 [1988]; Pavel v Fischer, 21 Misc 3d 143[A], 2008 NY Slip Op 52452[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). "While documentation, or the absence thereof, might be a significant factor in evaluating primary residency, especially in the case of the dubious credibility of witnesses, it would not be a dispositive factor, especially when there is a preponderance of credible personal testimony" (300 E. 34th St. Co. v Habeeb, 248 AD2d 50, 55 [1997] [citations omitted]; see 23 Jones St. Assoc. v Keebler-Beretta, 284 AD2d 109 [2001]; Zevrone Realty Corp. v Irving, 63 Misc 3d 141[A], 2019 NY Slip Op 50587[U] [App Term, 1st Dept 2019]).

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 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824, 826 [2008]).

During the nonjury trial, the testimony of the superintendent of the building and the majority of the physical evidence submitted, including, among other things, occupant's cell phone bills, credit card bills, driver's license, letters of administration for tenant's estate, and landline telephone and Con Edison account records, supports the Civil Court's determination that occupant did not use the subject premises as her primary residence during the relevant time period.

Accordingly, the final judgment is affirmed.

TOUSSAINT, P.J., BUGGS and QUIÑONES, JJ., concur.

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: March 20, 2026