It has long been the settled law that on a bench trial, the decision of the trial court is to be given great deference, and should not be disturbed on 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.”1 This rule applies in non-primary residence proceedings.2 In 409-411 Sixth Street v. Mogi,3 however, a three-judge majority of the Appellate Division, First Department, in reversing the Appellate Term and dismissing the landlord’s non-primary residence holdover proceeding, appears not to have applied this well-established standard of review, and instead made its own findings based on an independent analysis of the evidence.
Facts of ‘Mogi’
The facts as recited by the majority opinion in Mogi are as follows. The respondent-tenant, Masako Mogi, occupied a studio apartment at the subject building at 409-411 Sixth St. in Manhattan, pursuant to a rent-stabilized lease entered into in 1980 and periodically renewed thereafter. By timely notice dated Sept. 19, 2006, the petitioner-landlord, 409-411 Sixth Street, LLC, terminated the tenancy effective Dec. 31, 2006, on the ground that Mogi had relocated to Vermont and that she occupied the apartment less than 180 days a year during the preceding two-year period. The landlord then commenced a holdover proceeding in Civil Court, New York County to recover possession of the apartment, on the ground that Mogi did not occupy the apartment as her primary residence. Tenant answered, denying the material allegations of the petition and averring that the property she owned in Vermont was not her primary residence, but was her summer vacation home.
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