Tabak v. Steele

In Tabak v. Steele (8 Misc 3d 78 [App Term, 1st Dept, 2005]) the trial court entered a judgement for tenant after trial. The Appellate Term affirmed, finding that the testimony of the tenant was sufficient to preclude the landlord's recovery of the Subject Premises. In that proceeding, the tenant had put into evidence her Con Edison bills, and the landlord did not put any subpoenaed documents from Con Edison. The Appellate Term noted that although a Con Edison representative did testify at the trial: "... the witness was asked no questions on direct examination concerning the level of electrical usage in the subject apartment..." and that the landlord did not emphasize the issue of low utility usage on appeal which the Appellate Term deemed " ... an appropriate acknowledgment that the subject is not probative' of the primary residence issue framed on appeal (Id at 80)"