| 68-74 Thompson Realty, LLC v McNally |
| 2010 NY Slip Op 01693 [71 AD3d 411] |
| March 2, 2010 |
| Appellate Division, First Department |
| 68-74 Thompson Realty, LLC, Appellant, v KeithMcNally et al., Respondents. |
—[*1] David A. Kaminsky & Associates, P.C., New York (Martin G. Dobin of counsel), forrespondents.
Order, Appellate Term of the Supreme Court in the First Judicial Department, entered May14, 2008, which reversed a judgment of the Civil Court of the City of New York, New YorkCounty (Jean T. Schneider, J.), entered December 1, 2005, after a nonjury trial, awardingpossession to petitioner landlord, and awarded judgment to respondent Harry McNallydismissing the proceeding, unanimously reversed, on the law, without costs, and judgment ofpossession to petitioner reinstated.
Petitioner commenced this summary holdover proceeding for possession of a rent-stabilizedapartment in Manhattan's West Village on the ground of nonprimary residence. Harry McNallyclaims succession rights to the subject apartment, which his father, Keith McNally, the tenant ofrecord since 1993, vacated in 2002. The father moved to a West Village town house he hadpurchased two years earlier. Harry's parents were divorced in 1994. At the time of his father'smove to the town house, Harry was a 17-year-old minor, and his mother resided in her ownapartment, also in the West Village.
The burden of presenting legally sufficient proof to establish primary residency rests withthe party claiming succession rights (see Gottlieb v Licursi, 191 AD2d 256 [1993])."Primary residence" is judicially construed as "an ongoing, substantial, physical nexus with the. . . premises for actual living purposes" (Katz Park Ave. Corp. v Jagger, 11 NY3d 314, 317 [2008], quotingEmay Props. Corp. v Norton, 136 Misc 2d 127, 129 [App Term 1987]). Upon our reviewof the documentary and other evidence, we find, contrary to the view of the Appellate [*2]Term, that Harry failed to meet his burden of proof that his father'sformer residence was his primary residence at all relevant times. Concur—Mazzarelli,J.P., Friedman, Nardelli, Renwick and RomÁn, JJ. [Prior Case History: 20 Misc 3d14.]