Alex Pushyk, Lyudmila Braude and Alexandra Braude, Appellants, v. Sergei Shiyanoff, Respondent, "John Doe" and "Jane Doe", Undertenants. (2026)

ORDERED that the final judgment is affirmed, without costs.

The petition in this holdover proceeding alleged that the subject premises is not rent stabilized as the building contains fewer than six residential units. Tenant interposed an answer asserting, among other things, that the subject building is rent stabilized as it contains six residential units.

At a nonjury trial, the main issue was whether apartment 1L, a two-bedroom railroad-style apartment currently subdivided into a one-bedroom apartment occupied by tenant and a storage room used by landlords, was ever occupied as two separate residential apartments, bringing the total number of housing accommodations to six and subjecting the building to rent stabilization. The storage room was formerly the rear bedroom, accessible from the living area through the front bedroom, with its own separate entrance and bathroom. Prior to trial, the parties stipulated that the subject building was built prior to 1974 and contains at least 5 residential units.

At a nonjury trial, landlords submitted documentary evidence showing that the building has five residential units and that apartment 1L had been rented as a two-bedroom apartment. Tenant, who lived on the third floor from 2000 until 2012 when he moved into apartment 1L, and his witnesses testified that, during a period of time, the subdivided rear bedroom of apartment 1L was occupied as a separate apartment unit by a woman named Alla. Tenant and his mother testified that they had been inside Alla's apartment and observed, among other things, an electric stove. Tenant submitted photographs into evidence depicting six mailboxes and testified that his mailbox, labeled 1L, was located in between landlords' mailbox, labeled 1R, and a second mailbox labeled 1L. On rebuttal, Mr. Pushyk testified that the six mailboxes predate his ownership (which commenced in 1998), that only five of them had ever been in use, that he could not read the apartment label on the second mailbox purportedly labeled 1L, and that he did not create that label. He also testified that he had no memory or documentation of who the tenant(s) of 1L were from 1998 to 2003. Mr. Ratner, a former tenant of 1L, testified on behalf of landlords that he first occupied 1L with a roommate, then with his wife after his roommate vacated. Mr. Ratner testified that, as a roommate, he occupied the rear bedroom, and that he and his roommate used separate keys for privacy. After the trial, the Civil Court (David A. Harris, J.) found that the subject premises is rent stabilized and dismissed the petition. A final judgment dismissing the petition was entered on February 24, 2025.

It is well established that the decision of a fact-finding court should not be disturbed upon appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]). Furthermore, 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 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824 [2008]).

Where a respondent in a holdover proceeding pleads that the unit is rent stabilized, it is the landlord's threshold burden to demonstrate that the subject building is exempt from rent stabilization (see Andrew Jackson Realty Co., L.P. v Patan, 86 Misc 3d 127[A], 2025 NY Slip Op 50834[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2025]; Ortiz v Dharmnath, 83 Misc 3d 38 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]; TJA Realty, LLC v Hermosa, 56 Misc 3d 130[A], 2017 NY Slip Op 50858[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). It is well settled that once a building is altered to contain six or more residential units, all of the units in the building are brought under rent stabilization (see Matter of Gandler v Halperin, 232 AD2d 637 [1996]; Beverly Holding NY, LLC v Blackwood, 63 Misc 3d 160[A], 2019 NY Slip Op 50877[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Rashid v Cancel, 9 Misc 3d 130[A], 2005 NY Slip Op 51585[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2005]).

The Civil Court's determination can be supported by a fair interpretation of the evidence. The evidence at trial supports a finding that a woman named Alla resided in the rear bedroom of apartment 1L as a separate housing accommodation. The evidence also indicates that Mr. Ratner occupied that rear bedroom, not as a roommate as he contends, but rather, as an independent tenant of that rear bedroom. Landlords were unable to set forth a credible and complete timeline of the tenants who occupied apartment 1L and, therefore, did not meet their ultimate burden of demonstrating that the premises is not rent stabilized.

Given that the subject apartment is subject to rent stabilization, landlords can evict tenant only upon one of the grounds set forth in Rent Stabilization Code (RSC) (9 NYCRR) § 2524.3 and only after serving him with the notices required under RSC § 2524.2 (see Commercial Hotel v White, 194 Misc 2d 26 [App Term, 2d Dept, 2d & 11th Jud Dists 2002]), which landlords failed to do.

Accordingly, the final judgment is affirmed.

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

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: June 12, 2026