111 REALTY CO v. SULKOWSKA (2008)

Order (Jean T. Schneider, J.), entered August 20, 2007, affirmed, with $10 costs.

 This holdover summary proceeding, based upon allegations of nonprimary residence, is not susceptible to summary disposition.   While tenant readily acknowledges her ownership of two separate residential units in Florida, material issues of fact as to the situs of tenant's primary residence are raised by tenant's deposition testimony indicating her use of the rent stabilized Manhattan apartment here at issue for all but the winter months and ample documentary indicia of tenant's residency in the New York apartment.   This is so notwithstanding tenant's designation of a West Palm Beach property as her address in successfully applying for a Florida homestead exemption.   A tenant's declaration of residence on a tax-related document, while one of many factors to be considered in determining primary residence, is not “dispositive as a matter of law, especially in the context of a motion for summary judgment” (West 157th St. Assoc. v. Sassoonian, 156 A.D.2d 137, 139, 548 N.Y.S.2d 184 [1989];  see Glenbriar Co. v. Lipsman, 11 A.D.3d 352, 353, 783 N.Y.S.2d 546 [2004], affd. on other grounds 5 N.Y.3d 388, 804 N.Y.S.2d 719, 838 N.E.2d 635 [2005][listing of out-of-state address as primary residence in tax returns not fatal to claim of primary residence in New York];  310 East 23rd LLC v. Colvin, 41 A.D.3d 149, 837 N.Y.S.2d 134 [2007] [same];  Village Dev. Assoc., LLC v. Walker, 282 A.D.2d 369, 723 N.Y.S.2d 649 [2001][same] ).

To be distinguished is Katz Park Ave. Corp. v. Jagger, 46 A.D.3d 186, 843 N.Y.S.2d 329 (2007), in which a sharply divided panel of the Appellate Division, First Department held that the tenant, a British citizen temporarily staying in the United States under a tourist visa, was precluded, as a matter of law, from maintaining a primary residence in a rent stabilized apartment in New York City. Unlike the situation in the case at bar, it was the tenant's immigration status as a “temporary visitor,” not any self-initiated declaration of residence, that was determined in Jagger to be fatal to that tenant's primary residence claim.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

PER CURIAM.