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317 MAGNONE LLC, pet-land-res, v. CAROL ANN GUMINA, res-tenant-app

17-095. 317 MAGNONE LLC, pet-land-res, v. CAROL ANN GUMINA, res-tenant-app — Final judgment (Jean T. Schneider, J.), entered March 28, 2016, affirmed, with $25 costs.

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17-095. 317 MAGNONE LLC, pet-land-res, v. CAROL ANN GUMINA, res-tenant-app — Final judgment (Jean T. Schneider, J.), entered March 28, 2016, affirmed, with $25 costs.

A fair interpretation of the evidence supports the finding that tenant did not utilize the subject rent controlled apartment as her primary residence (see 409-411 Sixth St., LLC v. Mogi, 22 NY3d 875 [2013]). The trial evidence showed and it was essentially undisputed that tenant was not present in the apartment at all from March 2010 through the July 2013 commencement of this proceeding. Indeed, tenant did not return to the apartment until the time of her deposition in June 2015 and, after the deposition, she did not return again until the time of trial in February 2016. During her extended absence, tenant was in Wisconsin, where she owns property and is licensed to drive. Tenant also referenced the Wisconsin address on her federal tax returns and court filings (see Berwick Land Corp. v. Mucelli, 249 AD2d 18 [1998]).

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