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409-411 SIXTH ST v. MOGI

570068/09, 6434.

100 A.D.3d 112 (2012)

951 N.Y.S.2d 500

2012 NY Slip Op 6568

409-411 SIXTH STREET, LLC, Respondent, v. MASAKO MOGI, Appellant.

Appellate Division of the Supreme Court of New York, First Department.

October 2, 2012.

Attorney(s) appearing for the Case

De Castro Law Firm, Woodside ( Steven De Castro of counsel), for appellant.

Belkin Burden Wenig & Goldman, LLP, New York City ( Robert A. Jacobs , Joseph Burden , Sherwin Belkin , Magda L. Cruz and Alana Wrublin of counsel), for respondent.

MAZZARELLI, J.P., and FREEDMAN, J., concur with RENWICK, J.; FRIEDMAN and CATTERSON, JJ., dissent in a separate opinion by CATTERSON, J.

OPINION OF THE COURT

RENWICK, J.

Petitioner landlord commenced this holdover proceeding to recover possession of a rent-stabilized apartment located on East 6th Street, New York, New York, on the ground that respondent Masako Mogi (tenant) does not occupy the subject premises as her primary residence. Unlike the courts below, we find that the landlord has not established by preponderant evidence that the tenant has forfeited her principal New York residence...

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