405 E. 56th St., LLC v. Malfa

• Decision Date: 13 April 2012
• Citation: 405 E. 56th St., LLC v. Malfa, 35 Misc.3d 84, 946 N.Y.S.2d 825, 2012 N.Y. Slip Op. 22097 (N.Y. App. Div. 2012)
• Parties: 405 EAST 56TH STREET, LLC, Petitioner–Landlord–Appellant, v. Christopher MALFA, Respondent–Tenant–Respondent, and “John Doe” “Jane Doe,” Respondents–Undertenants.
• Court: New York Supreme Court — Appellate Division

35 Misc.3d 84

946 N.Y.S.2d 825

2012 N.Y. Slip Op. 22097

405 EAST 56TH STREET, LLC, Petitioner–Landlord–Appellant,

v.Christopher MALFA, Respondent–Tenant–Respondent,and“John Doe” “Jane Doe,”Respondents–Undertenants.

Supreme Court, Appellate Term, New York. First Department.

April 13, 2012.

Jeffrey M. Goldman and Judith M. Brener, New York City, for appellant.

Gallet Dreyer & Berkey, LLP, New York City(Beatrice Lesser of counsel), for respondent.

Present: SHULMAN, J.P., SCHOENFELD, TORRES, JJ.

PER CURIAM.

Final judgment (Jean T. Schneider, J.), entered on or about August 11, 2010, reversed, petition reinstated, and matter remanded for a new trial consistent with this opinion, with $30 costs to abide the event.

The evidence presented at the trial of this nonprimary residence holdover proceeding showed, and it is not seriously disputed, that tenant made only minimal, daytime use of the East 56th Street stabilized apartment here at issue for the year-and-a-half period between February 2007 and his receipt of the underlying notice of nonrenewal in July 2008, living instead in an East 91st Street apartment leased by his long-term companion.The central focus of the trial was whether tenant's acknowledged absence was excusable for purposes of nonprimary residence analysis, with respondent offering what his attorney accurately described as “a very complicated story” in defense of landlord's possessory claim.Of the various explanations provided by tenant for his underutilization of the subject apartment, two resonated with the trial court: that tenant's apartment was “too cluttered to live in” from February 2007 to sometime in “late 2007” as a result of landlord's building-wide, terrace repair project, which, it is alleged, forced tenant to store terrace furniture and other “outdoor” items within the apartment, and that tenant thereafter was unable to “live alone” in his apartment due to his “fragile psychological condition.”Upon our review of the record, we conclude that the court's finding in favor of tenant on the former issue was unsupported by legally sufficient evidence, and that the court's finding for tenant on the latter issue was tainted by evidentiary error and did not comport with the weight of the evidence.

With respect to the terrace furniture, no reasonable view of the evidence can support a finding that tenant's absence from the apartment—a 750 square-foot, one-bedroom unit—was attributable to, much less legally excused by, any clutter condition that may have been caused by the landlord's terrace repairs.Significantly, the record contains no indication that tenant ever complained to the landlord of any such clutter condition, nor was any competent showing made that the presence of outdoor furniture, pots, planters and the like that previously adorned tenant's small terrace ¹ substantially interfered with his use of the apartment interior.To the contrary, tenant's testimony showed little more than that the displaced terrace furniture “block [ed]” his living room couch, hardly the type of condition that would “amount to a substantial and material deprivation of use and enjoyment of the premises” sufficient to excuse tenant's absence therefrom ( seeEast End Temple v. Silverman,199 A.D.2d 94, 605 N.Y.S.2d 56[1993];cf.Ascot Realty LLC v. Richstone,10 A.D.3d 513, 781 N.Y.S.2d 513[2004],lv. dismissed4 N.Y.3d 842, 797 N.Y.S.2d 413, 830 N.E.2d 311[2005] ).

Turning to the issue of tenant's psychological state, the court should not have granted tenant's mid-trial application to present a psychiatric...