Claridge Gardens, Inc. v. Menotti

• Decision Date: 19 April 1990
• Citation: Claridge Gardens, Inc. v. Menotti, 554 N.Y.S.2d 193, 160 A.D.2d 544 (N.Y. App. Div. 1990)
• Parties: CLARIDGE GARDENS, INC., Petitioner-(Landlord)-Appellant-Respondent, v. Gian Carlo MENOTTI, Respondent-(Tenant)-Respondent-Appellant, v. Melinda MURPHY etc., et al., Respondents-(Undertenants)-Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 193

554 N.Y.S.2d 193

160 A.D.2d 544

CLARIDGE GARDENS, INC., Petitioner-(Landlord)-Appellant-Respondent, v.Gian Carlo MENOTTI, Respondent-(Tenant)-Respondent-Appellant, v.Melinda MURPHY etc., et al.,

Respondents-(Undertenants)-Respondents-Appellants.

Supreme Court, Appellate Division First Department.

April 19, 1990.

M.I. Shelton, New York City, for Claridge Gardens, Inc.

J.N. Lerner, for Menotti and Murphy.

Before SULLIVAN, J.P., and CARRO, ROSENBERGER, ELLERIN and RUBIN, JJ.

MEMORANDUM DECISION.

Order of the Supreme Court, Appellate Term, First Department(Parness, J.P., dissenting, Miller and McCooe, JJ.), entered April 18, 1989, affirming a February 26, 1988 order of the Civil Court, New York County, Housing Part (Joan Lobis, J.) which, after a bench trial, granted petitioner-landlord final judgment on the grounds that the subject apartment was not the tenant's primary residence, appealed by permission of the Appellate Term in an order entered May 19, 1989, unanimously affirmed, without costs.

The tenant is a well-known musician who spends relatively little time in the subject apartment.While that, alone, is not a sufficient basis for a finding of non-primary residence (Coronet Properties Co. v. Brychova, 122 Misc.2d 212, 469 N.Y.S.2d 911, aff'd, 126 Misc.2d 946, 488 N.Y.S.2d 1020), the trial court's determination was not based merely on the amount of time the tenant spent in the apartment.Competent evidence in the record supports the trial court's conclusion that the tenant actually resided in a house in Scotland from 1973 to 1986.The tenant's attempts to explain away this fact merely raised questions of fact and credibility for the trial court.On a bench trial, the decision of the 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, especially when the findings of fact rest in large measure on considerations relating to the credibility of witnesses (Nightingale Restaurant Corp. v. Shak Food Corp., 155 A.D.2d 297, 547 N.Y.S.2d 61, 62).Here, the evidence supports the trial court's findings.

The prime tenant's son is not entitled to the apartment.Such succession is permissible only where the prime tenant vacates the apartment voluntarily and where the subject apartment is the primary residence of the prime tenant (Herzog v. Joy, 74 A.D.2d 372, 428 N.Y.S.2d 1, aff'd, 53 N.Y.2d 821, 439 N.Y.S.2d 922, 422...