Kamvan Co. v. Rammel ( 1985 )

OPINION OF THE COURT

Richard S. Lane, J.

In this nonprimary residency holdover proceeding the facts are not controverted and both parties seek summary judgment.

Respondents have not physically occupied the apartment for over 30 months while on temporary but extended assignment from the United Nations in Vienna. There is no doubt, however, that they still regard it as their home, that they intend to return to it at the conclusion of their assignment in Vienna, and that they have acted accordingly. Their personal furniture and effects remain in the apartment; they have been in continued communication with petitioner; they have designated a responsible caretaker; they have continued to pay New York State and City taxes; they have not sublet to another; and they have acquired no other permanent residency.

Continued domicile is not enough by itself to maintain primary residency. It is, however, when combined with overwhelming evidence of continued residency in this case (Coronet Props. Co. v Brychova, 122 Misc 2d 212, affd 126 Misc 2d 946; 530 Second Ave. Co. v Gold, NYLJ, June 28, 1985, p 12, col 1; Melrose v Greenburger, NYLJ, Feb. 1, 1984, p 6, col 4).

Respondents’ motion for summary judgment dismissing the petition is granted, and petitioner’s cross motion is denied.

No lease is attached. The court is not certain therefore whether Real Property Law §234 is applicable, and accordingly respondents’ application for attorneys’ fees is denied without prejudice to renewal.