RAYAPUDI v. “John Doe” and “Jane Doe,” Respondents-Undertenants. (2018)

Order (John H. Stanley, J.), dated October 3, 2017, affirmed, with $10 costs.

We agree with Civil Court that the record, including the deposition testimony of landlord and his son, raises an issue of fact, turning largely on credibility, as to whether landlord had a good faith intention to recover possession of the subject rent stabilized apartment for the use of his son and daughter-in-law (see Pultz v. Economakis, 10 NY3d 542, 548 [2008] ). While tenant significantly challenges landlord's good faith, this issue, which “rest[s] in large measure on considerations relating to the credibility of witnesses” (Powers v. Babic, 177 AD2d 432 [1991] ), is not appropriately resolved on a motion for summary judgment (see Prochner v. Pancerz, 12 Misc 3d 139[A], 2006 NY Slip Op 51330[U][App Term, 2nd and 11th Jud Dists 2006]; Chan v. Adossa, 195 Misc 2d 590, 595 [App Term, 2nd and 11th Jud Dists 2003]; see also BMX Worldwide v. Coppola N.Y.C., 287 AD2d 383, 384 [2001] ). Such a determination should be made by the trial court, which has “direct access to the parties” (Elias v. Handler, 244 AD2d 522 [1997], quoting Yasparro v. Yasparro, 207 AD2d 445, 446 [1994] ) and can observe their demeanor and hear their testimony (see Powers v. Babic, 177 AD2d at 432).

Nor is a finding of lack of good faith mandated, as a matter of law, by the variance between landlord's proof and the allegations set forth in the predicate notice (see Horsford v. Bacott, 5 Misc 3d 132[A], 2004 NY Slip Op 51399[U] [App Term, 1st Dept 2004], affd 32 AD3d 310 [2006], affd 8 NY3d 874 [2007] ).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Per Curiam.