Aurelien v. City of New York, 15 Misc 3d 1116[A], 839 NYS2d 431, 2007 NY Slip Op 50701[U], 2007 WL 1012978 (N.Y.Sup.) discusses "actual use" as a factor to be considered where non-residential use is alleged. In Aurelien, however, defendant City was alleging non-residential use in seeking summary judgment, and plaintiff's opposition alleging "actual residential use" consisted of a Tax Assessor listing of the property as "Single Family Residence--Townhouse. The document, however, went on to describe the premises as "storesResidential". For that reason, the Aurelien Court found the "tax assessor's listing" as insufficient to raise a triable issue of fact regarding the absence of any non-residential use. Additionally, there was no affidavit of a person with personal knowledge of the facts, thus the attorney's affirmation alone was insufficient to defeat summary judgment.