456 LLC v. WAGSTAFF (2024)

ORDERED that the final judgment is affirmed, without costs.

In this nonprimary-residence holdover proceeding to recover possession of a rent-controlled apartment (see NY City Rent and Rehabilitation Law [Administrative Code of City of NY] § 26-403 [e] [2] [i] [10]), landlord asserts that tenant has not been primarily residing in the subject apartment, which is located in Brooklyn. Following a nonjury trial, the Civil Court dismissed the petition.

The New York City Rent and Rehabilitation Law, governing rent-controlled apartments within New York City, excludes from coverage a housing accommodation which is “not occupied by the tenant ․ as his or her primary residence, as determined by a court of competent jurisdiction” (id.). “Primary residence” has been defined as “an ongoing, substantial, physical nexus with the controlled premises for actual living purposes” (Emay Props. Corp. v Norton, 136 Misc 2d 127, 129 [App Term, 1st Dept 1987]; see Johnson v Smith, 53 Misc 3d 144[A], 2016 NY Slip Op 51562[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).

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]).

First, we note that landlord's sole witness did not have personal knowledge of tenant's occupancy of the building. Furthermore, while tenant admitted to spending time at her daughter's Pennsylvania address, the totality of the evidence established that tenant was using the subject Brooklyn apartment in an “ongoing” and “substantial” manner consistent with physically living at the subject premises. Upon a review of the record, we find no basis to disturb the Civil Court's determination that landlord did not prove, by a preponderance of the evidence, that tenant did not occupy the subject apartment as her primary residence.

Accordingly, the final judgment is affirmed.

TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.