310 EAST 23RD LLC v. John Ford, et al., Respondents. (2007)

Order of the Appellate Term of the Supreme Court of the State of New York, First Department, entered June 7, 2006, which affirmed a judgment of the Civil Court, New York County (Jerald R. Klein, J.), entered on or about May 26, 2005, after a nonjury trial in a holdover proceeding, in favor of respondent tenant and against petitioner landlord, unanimously affirmed, without costs.

A fair interpretation of the evidence supports the findings that the subject apartment was at all relevant times respondent's primary residence and that the house she owns in Upstate New York is a second residence that she uses on weekends, holidays and vacations (see Glenbriar Co. v. Lipsman, 5 N.Y.3d 388, 392, 804 N.Y.S.2d 719, 838 N.E.2d 635 [2005];  Thoreson v. Penthouse Intl., 80 N.Y.2d 490, 495, 591 N.Y.S.2d 978, 606 N.E.2d 1369 [1992] ).   Such evidence includes respondent's testimony showing a substantial physical nexus to the apartment (Glenbriar Co., id. at 393, 804 N.Y.S.2d 719, 838 N.E.2d 635), and explaining, inter alia, why she specified the Upstate residence as her home address in certain tax-related documents (see 23 Jones St. Assoc. v. Keebler-Beretta, 284 A.D.2d 109, 726 N.Y.S.2d 30 [2001] [documentary evidence “is not essential” in determining primary residence and “does not necessarily preponderate over inconsistent testimonial evidence”];  see also Glenbriar Co., 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, supra [listing of Florida address as primary residence in tax returns not fatal to claim of primary residence in New York] ).   Indeed, respondent's New York State tax returns, relied on by petitioner insofar as they specify the Upstate residence as respondent's home address, also specify that respondent is a full-year resident of New York City, and show that she always paid New York City income tax on all of her income.