East End Temple v. Silverman

• Decision Date: 14 December 1993
• Citation: East End Temple v. Silverman, 605 N.Y.S.2d 56, 199 A.D.2d 94 (N.Y. App. Div. 1993)
• Parties: EAST END TEMPLE, etc., Plaintiff-Respondent, v. Linda SILVERMAN, etc., Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 56

605 N.Y.S.2d 56

199 A.D.2d 94

EAST END TEMPLE, etc., Plaintiff-Respondent, v. Linda SILVERMAN, etc., Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Dec. 14, 1993.

Before ELLERIN, J.P., and KUPFERMAN, RUBIN and NARDELLI, JJ.

MEMORANDUM DECISION.

Order and judgment (one paper), Supreme Court, New York County (Alfred Toker, J.), entered on or about August 26, 1992, which inter alia, granted plaintiff landlord's motion for summary judgment and declared that the landlord was entitled to possession of the subject apartment, and an order of the Supreme Court, New York County (Diane A. Lebedeff, J.), entered January 20, 1993, which dismissed the defendant's counterclaims for constructive eviction and intentional infliction of emotional distress, unanimously affirmed, with costs.

Primary residence is "an ongoing, substantial, physical nexus with the [stabilized] premises for actual living purposes" (Emay Props. Corp. v. Norton, 136 Misc.2d 127, 129, 519 N.Y.S.2d 90). Rent Stabilization Code (9 NYCRR) § 2524.4[c] allows a landlord to refuse to renew a stabilized tenant's lease if the tenant does not occupy the premises as the primary residence. The evidence, including defendant's own testimony and her extra-judicial testimony contained in the mortgage application for a New Jersey residential property, clearly demonstrates that the tenant did not maintain an ongoing, substantial, physical nexus with the subject premises.

The defendant tenant's claim of a constructive eviction is without merit. The defendant tenant's own testimony reflects that a one time occurrence of smoke prompted her to vacate her apartment. This single day of inconvenience does not amount to a substantial and material deprivation of use and enjoyment of the premises (Barash v. Pennsylvania Term. Real Estate Corp., 26 N.Y.2d 77, 83, 308 N.Y.S.2d 649, 256 N.E.2d 707). Further,...