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Nonprimary Residence Proceedings

BY Stewart E. Sterk
November 27, 2013

If a trial court determines, in a landlord's nonprimary residence holdover proceeding, that a tenant did ' or did not ' maintain his primary residence in his rent-stabilized apartment, what standard of review must an appellate court apply in reviewing that determination? In 409-411 Sixth Street, LLC. V. Mogi, 2013 N.Y. Slip Op. 06604, decided on Oct.10, the Court of Appeals addressed the issue, and reversed the First Department's determination for according insufficient deference to the trial judge's determination. The court endorsed a standard articulated in an earlier First Department opinion, Claridge Gardens v. Menotti, 160 A.D.2d 544, 544-45, holding that the trial court's determination should not be disturbed “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.”

The Mogi Case

Masako Mogi, a Japanese citizen who maintains permanent residence in the United States, first leased the subject rent-stabilized studio apartment in 1980. Since 1990, she has also owned a 1 '-story cabin in Vermont. In 2006, the landlord provided Mogi with notice that it had terminated the tenancy on the ground that tenant had relocated to Vermont, and had occupied the apartment for fewer than 180 days a year during the preceding two-year period. When the tenant failed to leave, the landlord brought a holdover proceeding.

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