| Matter of Ansonia Assoc. L.P. v Unwin |
| 2015 NY Slip Op 05880 [130 AD3d 453] |
| July 7, 2015 |
| Appellate Division, First Department |
[*1]
| In the Matter of Ansonia Associates LimitedPartnership, Appellant, v Marieliz Unwin, Respondent, et al.,Respondents. |
Duane Morris LLP, New York (Fran M. Jacobs of counsel), for appellant.
Schechter & Brucker, P.C., New York (David H. Ostwald of counsel), forrespondent.
Order of the Appellate Term of the Supreme Court, First Department, entered on orabout April 9, 2014, which affirmed an order of the Civil Court, New York County(Sabrina B. Kraus, J.), entered October 11, 2013, denying petitioner's motion forsummary judgment awarding it possession of the subject apartment, unanimouslyreversed, on the law, without costs, and the motion granted. The Clerk is directed to enterjudgment accordingly.
Petitioner established prima facie that the apartment is not respondent's primaryresidence (see Rent Stabilization Code [9 NYCRR] § 2524.4 [c]) bysubmitting respondent's federal income tax returns for the years 2009, 2010, and 2011,on which she deducted the entire rent for the apartment as an expense of her SCorporation. The instructions for the federal income tax return for an S Corporation(Form 1120S) disallow the deduction of rent "for a dwelling unit occupied by anyshareholder for personal use." Thus, respondent's position that the apartment is herprimary residence is "contrary to declarations made under the penalty of perjury onincome tax returns," i.e. that she does not occupy the apartment for personal use (see Mahoney-Buntzman vBuntzman, 12 NY3d 415, 422 [2009]).
Respondent argues that her tax returns are not dispositive because the RentStabilization Code states that in determining primary residence "no single factor shall besolely determinative" (9 NYCRR 2520.6 [u]). However, we conclude that respondentmay not claim primary residence [*2]because that claim is"logically incompatible" with the position she asserted on her tax returns (see Katz Park Ave. Corp. vJagger, 11 NY3d 314, 317 [2008]). Respondent has made no showing thatwould undermine our conclusion. Concur—Friedman, J.P., Andrias, Saxe, Richterand Gische, JJ. [Prior Case History: 47 Misc 3d 28.]