Hous. Dev. Assocs., LLC v. Fitzgerald

• Decision Date: 16 November 2021
• Docket Number: 570144/21
• Citation: 155 N.Y.S.3d 28 (Table),73 Misc.3d 137 (A)
• Parties: HOUSING DEVELOPMENT ASSOCIATES, LLC, Petitioner-Landlord-Respondent, v. Kerry FITZGERALD, Respondent-Tenant-Appellant, and "John Doe" and "Jane Doe," Respondents-Undertenants.
• Court: New York Supreme Court — Appellate Term

73 Misc.3d 137 (A)
155 N.Y.S.3d 28 (Table)

HOUSING DEVELOPMENT ASSOCIATES, LLC, Petitioner-Landlord-Respondent,
v.
Kerry FITZGERALD, Respondent-Tenant-Appellant, and "John Doe" and "Jane Doe," Respondents-Undertenants.

570144/21

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

Decided on November 16, 2021

Per Curiam.

Appeal from "decision/order" (Anne Katz, J.), dated October 29, 2019, deemed an appeal from the ensuing final judgment (same court and Judge) entered October 30, 2019, and so considered (see CPLR 5520[c] ), final judgment affirmed, with $25 costs.

In a nonprimary residence case such as this, 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 (see Claridge Gardens v Menotti , 160 AD2d 544, 545 [1990] ; 409-411 Sixth St., LLC v Mogi , 22 NY3d 875, 876-877 [2013] ). Applying this standard, we find that competent evidence in the record supports the trial court's conclusion that tenant did not use his New York apartment as his primary residence during the subject period. Building employees credibly testified that they "rarely saw" tenant at the subject premises; tenant's bank statements showed "consistent activity" on an ongoing basis in Washington, D.C., for the bulk of the Golub period; tenant has a Washington, D.C., driver's license and his car was registered and kept in Washington, D.C.; tenant's automobile insurance, AAA membership and E-Z pass account reflected a Washington D.C., address; and tenant admittedly kept his pet cat in a Washington, D.C., apartment.

Tenant's attempt to show that his absence from the premises was excusable merely raised questions of fact and credibility for the trial court (see 542 E. 14th St. LLC v Lee, 66 AD3d 18, 22 [2009] ). Due regard must be given to the decision of the trial judge who was in the best position to...