409-411 Sixth Street, LLC v. Mogi

I must respectfully dissent. As a threshold issue, the majority has applied an incorrect standard of review in holding in its opening paragraph that “the landlord has not established by preponderant evidence” that the tenant did not use the subject apartment as her primary residence. The generally accepted standard for appellate review in a nonprimary residence action is whether “it is obvious that the [fact-finding] court’s conclusions could not be reached under any fair interpretation of the evidence.” (Claridge Gardens v Menotti, 160 AD2d 544, 545 [1st Dept 1990]; see also 542 E. 14th St.…