175-177 EAST THIRD ASSOCIATES, L.P. pet-land-app, v. SUSAN E. KUNZ, res-ten-res, -and “JOHN DOE” AND “JANE DOE,” res — Ordered that the motion is granted to the extent of granting appellant leave to appeal as a poor person. Seymour W. James, Jr., Esq., of the Legal Aid Society, Criminal Appeals Bureau (199 Water Street, 3rd Floor, NY, NY 10038, tel# 212 577-3688) is assigned as counsel for the appellant to prosecute the appeal and to serve without compensation. So Order — Order (Cheryl J. Gonzales, J.), dated September 8, 2014, affirmed, with $10 costs.
Summary judgment is not warranted in this nonprimary residence proceeding. Triable issues of fact exist as to the nature and extent of the long-term (20-year) tenant’s presence at and usage of the subject East 3rd Street, Manhattan apartment and the successive Grand Army Plaza condominium apartments purchased by tenant’s (now former) boyfriend during their 20-month “trial cohabitation” in Brooklyn. While tenant’s occupancy in Brooklyn during that period raises factual questions as to the situs of her primary residence, it does not, on this record, finally resolve the issue. Material issues of fact as to tenant’s substantial physical nexus to the Manhattan apartment are raised by her driver’s license, income tax returns, and voting and automobile registrations referencing that apartment; as well her affidavit in opposition, specifying, inter alia, that the apartment has been her primary residence since 1993; that during her temporary absence, most of her furniture and possessions remained in the apartment, where she often returned to spend time; and that she ultimately resumed occupancy in the apartment after the break-up with her boyfriend, some five months prior to landlord’s service of the Golub notice. The conflict as to whether the subject apartment is actually being used as tenant’s primary residence should be resolved at trial, and not on summary judgment (see West 15th St. Assoc. v. Sassoonian, 156 AD2d 137 [1989]; Coronet Props. Co. v. Adelman, 112 AD2d 100 [1985]; see also Extell Belnord LLC v. Uppman, 113 AD3d 1, 12 [2013]).