111 39 76TH ROAD LLC v. ROTHMAN (2022)

ORDERED that the final judgment is affirmed, without costs.

Landlord commenced this holdover proceeding to recover possession of a rent-stabilized apartment located in Forest Hills, Queens, upon the ground that tenant did not use the apartment as her primary residence as required by Rent Stabilization Code (RSC) (9 NYCRR) § 2524.4 (c), and instead lived primarily in a house located in Cambria Heights, Queens. After a nonjury trial, the Civil Court held that landlord failed to prove, by a preponderance of the evidence, that tenant did not occupy the subject apartment as her primary residence during the relevant period. A final judgment dismissing the petition was entered on May 5, 2021.

In a nonprimary-residence holdover proceeding, the landlord has the burden of showing, by a preponderance of the evidence, that the tenant did not use the subject premises as a primary residence (see Glenbriar Co. v Lipsman, 5 NY3d 388, 392 [2005]). The court may consider several factors when determining whether the premises is being occupied as a primary residence, and “no single factor shall be solely determinative” (RSC § 2520.6 [u]; see Glenbriar Co. v Lipsman, 5 NY3d at 392-393; Carmine Ltd. v Gordon, 41 AD3d 196 [2007]).

In reviewing a determination made after a nonjury trial, this court gives substantial deference to the determination of a trier of fact as to issues of credibility, 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]). Upon a review of the record, we find no basis to disturb the Civil Court's conclusion that landlord did not prove, by a preponderance of the evidence, that tenant did not occupy the subject apartment as her primary residence during the relevant period.

Accordingly, the final judgment is affirmed.

ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.