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47 HK REALTY, LLC, pet-land-app, v. KATHLEEN O'LEARY, res-tent-res, -AND- “JOHN DOE” AND “JANE DOE,” res-und

47 HK REALTY, LLC, pet-land-app, v. KATHLEEN O'LEARY, res-tent-res, -AND- "JOHN DOE" AND "JANE DOE," res-und (16/417) — Order (Anne Katz, J.), entered March 22, 2016, insofar as appealed from, affirmed, without costs.

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47 HK REALTY, LLC, pet-land-app, v. KATHLEEN O’LEARY, res-tent-res, -AND- “JOHN DOE” AND “JANE DOE,” res-und (16/417) — Order (Anne Katz, J.), entered March 22, 2016, insofar as appealed from, affirmed, without costs.

This nonprimary residence holdover proceeding is not ripe for summary disposition, since the parties’ conflicting proof raises questions of fact as to the nature and extent of tenant’s presence at and residential usage of the subject Manhattan stabilized apartment and a house co-owned by tenant in Mountain Lakes, New Jersey. Tenant testified at deposition and averred in her affidavit below that she works in Manhattan and stayed in the subject apartment during the week, and she submitted certain documentary indicia of her primary residence in the Manhattan apartment. 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 Coronet Props. Co. v. Adelman, 112 AD2d 100 [1985]; see also Extell Belnord LLC v. Uppman, 113 AD3d 1, 12 [2013]), notwithstanding that tenant designated her New Jersey address on her tax returns. Tenant’s address as designated in her tax returns is merely one of the many factors to be considered in determining primary residence; it is not a controlling factor (see Rent Stabilization Code [9 NYCRR] §2520.6[u]).

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