IN RE: 475 KENT OWNER (2022)

Judgment, Supreme Court, New York County (Carol R. Edmead, J.), entered on or about October 7, 2021, denying the petition to annul the determination of respondent New York City Loft Board, dated April 23, 2020, which, after a hearing, granted respondent tenant's application for protected occupancy status, and dismissed the proceeding brought pursuant to CPLR article 78, unanimously reversed, the judgment vacated, the petition treated as having been transferred to this Court for review, and, upon such review, the determination confirmed, the petition denied, and the proceeding dismissed, without costs.

Because the petition raised an issue of substantial evidence, it should have been transferred to this Court (CPLR 7804[g];  Matter of Crawford v. Brezenhoff, 187 A.D.3d 598, 598, 135 N.Y.S.3d 25 [1st Dept. 2020]).  We will treat it as though it had been transferred and dispose of all the issues.

The Loft Board's determination was not affected by an error of law (see CPLR 7803[3]) insofar as it ruled that, for purposes of his application for protected tenancy status (see Multiple Dwelling Law § 286[2][i];  29 RCNY 2–09[b][4]), the tenant, who was holding a 10–year B–1/B–2 temporary business and tourist visa, could seek to demonstrate that his interim multiple dwelling unit was his primary residence by showing an “unusual circumstance” in which “h[is] principal dwelling place for immigration purposes is in one place, and h[is] primary residence for rent regulation purposes [is] in another” (Katz Park Ave. Corp. v. Jagger, 11 N.Y.3d 314, 317, 869 N.Y.S.2d 4, 898 N.E.2d 17 [2008];  see 8 USC § 1101[a][15][B], [33];  compare Tres Realty LLC v. Ta–Wei Yu, 63 Misc.3d 28, 30–31, 98 N.Y.S.3d 372 [App. Term, 1st Dept. 2019] [foreign national holding F–1 student visa proved “unusual circumstance”];  but see Goldwater v. Amicus Assoc. L.P., 168 A.D.3d 405, 405–406, 89 N.Y.S.3d 609 [1st Dept. 2019] [rent stabilized unit not primary residence where tenant deducted rent as corporate expense, since “[a] party to litigation may not take a position contrary to a position taken in an income tax return”] [internal quotation marks omitted];  Matter of Ansonia Assoc. L.P. v. Unwin, 130 A.D.3d 453, 13 N.Y.S.3d 67 [1st Dept. 2015]).

The determination granting protected occupancy status to the tenant is supported by substantial evidence (see CPLR 7803[4];  Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 230–231, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974];  Matter of Pelli v. New York City Loft Bd., 5 A.D.3d 268, 268, 774 N.Y.S.2d 492 [1st Dept. 2004]).  The record includes the tenant's unrebutted testimony and ample documentation tending to show that his primary residence was the interim multiple dwelling unit in petitioner's building throughout the course of several years (see generally Emay Props. Corp. v. Norton, 136 Misc.2d 127, 129, 519 N.Y.S.2d 90 [App. Term, 1st Dept. 1987]).  That there was also in the record evidence to the contrary is of no moment, since “[t]he courts may not weigh the evidence or reject the choice made by [the administrative agency] where the evidence is conflicting and room for choice exists” (Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 444, 522 N.Y.S.2d 478, 517 N.E.2d 193 [1987] [internal quotation marks omitted]).