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A Primer on Non-Primary Residence Cases

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A Primer on Non-Primary Residence Cases

Postby TenantNet » Wed Jan 16, 2008 8:48 pm

A Primer on Non-Primary Residence Cases
by James B. Fishman, Esq.
Copyright, 2005, reprinted with permission

Non-primary residence claims are perhaps the most common type of holdover proceedings brought by landlords in New York City, particularly in Manhattan. Although every case has its own unique set of facts, the cases generally follow a common path. The purpose of this primer is to provide a general outline of non-primary residence cases and answer some of the more frequently asked questions. Most of these questions apply to rent stabilized tenancies. Rent Controlled tenancies have their own rules which are sometimes, but not always, the same as rent stabilized tenancies. Not all of the information set forth here will necessarily apply to all cases and you should always consult with a lawyer to determine the specific laws, procedures and regulations that apply to your case.

1. What is the procedure landlords must follow to commence a non-primary residence case?

During the “window period” (90-150 days before the end of your current lease) the landlord is required to send the tenant a “notice of non-renewal” of their lease (also called a “Golub” notice). If the landlord missed this period, even by a day, the case is subject to dismissal. Often landlords combine the Golub notice with a thirty day notice of termination advising the tenant that their tenancy is terminated upon its conclusion. Neither the Golub notice of the termination notice constitutes the commencement of an eviction proceeding. A holdover proceeding cannot be commenced until the current lease ends.

2. What is the landlord required to allege in a Golub notice?

The landlord is required to “clearly, unequivocally and unambiguously” allege facts which, the landlord contends, show that the tenant is not using the apartment as their primary residence. The Courts have not required that the notices contain all of the facts necessary to win a case but only just enough facts to show that the landlord has a valid basis to pursue the claim. If notice does not contain sufficient facts or if it is not clear the case is subject to dismissal

3. What is a holdover proceeding?

A holdover proceeding is a type of summary eviction proceeding commenced in the Housing Court in which landlord seeks to recover possession of the tenant’s apartment.

4. Besides possession what else can a landlord request or obtain in a holdover proceeding?

The landlord can request that the court award “use and occupancy” at a market rate. “Use and occupancy” or “u&o” is money for the use of an apartment in lieu of rent. Landlords are not permitted to collect rent from tenants once they have terminated their tenancy. Market rate u&o can only be awarded to the landlord if it is successful at the end of the case. In addition, if the lease includes an attorney’s fee claim then the landlord can also recover their attorney’s fees from the tenant if he/she prevails in the case. If the tenant prevails then they can recover their attorney’s fees from the landlord so long as the lease permits the landlord to do so.

5. What are the standards used by the Court to determine if the apartment is the tenant’s primary residence?

Physical connection to the apartment is the single most important factor; documents are corroborative evidence. The courts look at physical presence first with objective evidence such as bank statements, credit card bills, phone records which provide an electronic footprint of the tenant’s whereabouts being crucial. Documents which list the address are secondary, and an explanation for the tenant’s absence from the apartment, if one exists (i.e taking care of a sick relative, itinerant profession, etc.) are considered as explanations for absence. The types of objective evidence include, but are not limited to, filing of NYC resident income tax returns, voting records, bank account records, drivers license, automobile registration, utility bills, and the number of days spent in the apartment during the preceding year. However, a tenant is not required to spend 183 days in the apartment to prevail. Tenants whose jobs or family obligations require extensive travel or absence from the apartment are not automatically deprived of their apartment for this reason alone. In addition, the court will consider the presence, or absence of corroborative evidence placing the tenant at the second, suspected, address.

6. How do these cases generally proceed once they are filed?

Typically soon after the case is filed the landlord will serve a motion asking the court to permit it to conduct discovery. Discovery is the process by which a party obtains information from the other side about their case before trial. In addition, landlords will typically ask the court to order the tenant to pay “u&o” during the pendency of the proceeding. The appellate courts generally grant landlord discovery motions so it often does not make sense to expend time and resources fighting it. It is, however, possible to narrow some of the more broad document demands so that they are tailored to the case at hand. Occasionally a tenant may have a basis to seek discovery of the landlord although this is generally not the case.

If the court directs the payment of u&o before it is concluded it will likely be set at the same rate that the tenant was paying before the case began. However, if the landlord is ultimately successful in the case they will likely request that the tenant be required to pay, retroactive to start of the case, the difference between the regulated rent and the fair market rent.

7. How long do primary residence cases take to resolve?

It is impossible for any lawyer to accurately predict how long a case will take because there are many factors involved that are simply outside of the tenant’s control. The range is anywhere from a few weeks (if the landlord is convinced not to bring the case in the first place) to one or more years (if there is extensive motion practice, judicial delays, landlord delays, appeals etc.)

8. How much does it cost to defend a primary residence case?

Tenant lawyers typically handle these cases on an hourly basis. As stated in number 6, it is impossible to predict how long a particular case will take. A range $2,000 or less up to substantial five figures is possible. The most typical case will average at least $10,000, spread out over the length of the case. If a lease is produced which contains an attorney’s fee clause the prevailing party in the case can seek to recover their legal fees from the other side.

9. What should a tenant do to help prepare their case?

After receiving the Golub notice tenants should begin collecting and organizing their documents which establish their primary residence. This includes tax returns, bank account statements, insurance documents, credit card statements, automobile registrations, drivers license, cancelled checks for utilities, utility statements, employment records, medical records, school records, E-Z Pass statements, etc. Organizing these documents in clear and coherent way will save time and expense for the tenant. An excellent way to do this is with a color coded chart which tracks the tenant’s physical presence in any particular geographic location for the 2-3 years prior to case commencement. This should include references to the above documents Landlords can, if necessary, obtain travel records passports, EZ pass records, airline flights through third party subpoenas. The tenant should also begin preparing a list of witnesses who can testify where the tenant lives. Other tenants in the building who have been in the tenant’s apartment are a good choice. The tenant should meet with an experienced tenant lawyer as soon as possible after service of the Golub notice to begin planning a defense. The tenant should instruct their attorney not to turn over any documents to the landlord without first redacting all personal identifier information such as account numbers and social security numbers. Occasionally, an experienced, well-respected tenant lawyer may be able to convince a landlord’s attorney not to proceed with a case before it is commenced. This should be attempted if the tenant is interested in avoiding blacklisting. (See No. 12 below)

10. What do Landlords do to help prove their case?

Landlords are increasingly using various surveillance tactics to attempt to show that a tenant does not primarily reside in their apartment, and/or that somebody else does. These tactics can include private investigators, hidden video cameras in the public hallways, hiring other tenants to spy on their neighbors and requiring doormen to keep track of a tenant’s coming and going. Most of these practices are not illegal. Landlords are not, however, permitted to install cameras that can view inside a tenant’s apartment. See, (Your Landlord’s Dick--Building Owners Hire Spies to Win Evictions", Village Voice, August 3, 1999)

11. What happens after discovery is completed?

Once the landlord sees the strength of the tenant’s case their lawyer may initiate settlement discussions. Sometimes tenants are offered money (“buyout”) to vacate the apartment. The amount of any buyout and the amount of time the tenant will be afforded to leave are always subject to negotiation and is affected by many different factors. If the tenant’s case is weak any buyout offer will likely not be very significant.

12. I’ve heard about “blacklisting.” What is that and how does it affect my rights?

For about the past ten years the New York State Court System has been selling data about Housing Court eviction cases to data brokers known as “tenant screening bureaus” (“TSB’s”) These companies purchase data about eviction proceedings and sell it to prospective landlords who use it to assist in making rental decisions. Information about eviction cases can be reported for up to 7 years. Many TSB’s operate nationally so that a landlord in another city or state can learn about a New York City eviction proceeding. TSB’s only purchase information about cases that have actually been filed. Service of a Golub notice does not constitute the filing of a case. Only the service of a petition and notice of petition constitutes the commencement of a court case that can lead to blacklisting. Tenants who are likely to be seeking rental housing during the next seven years should be aware of the ramifications of blacklisting. If the tenant is particularly concerned about this issue they should consider having their attorney attempt to negotiate a settlement of the case before it is actually commenced so that they are not subjected to blacklisting. For a more detailed discussion, see, Blacklisted, City Limits City Limits Magazine, March, 2004)

13. Is there anything else a tenant should do to prepare their defense?

Tenants should request a copy of their current credit report from the three national credit reporting agencies: Trans Union, Equifax and Experian. The reports can be obtained online and are helpful in determining if the landlord has impermissibly obtained the tenant’s credit report in violation of federal law.

14. What is Housing Court litigation like?

Cases are heard by Housing Court judges who only hear eviction proceedings. Many Housing Court judges are former practitioners who previously represented tenants, landlords or both. Defending an eviction proceeding in Housing Court can be stressful. Many tenants represent themselves but are often taken advantage of by landlord attorneys. Tenants who are represented by lawyers not familiar with the intricacies of Housing Court and landlord/tenant practice are often find that they are actually worse off then if they represented themself. The most effective way for tenants to succeed in Housing Court is with an experienced tenant attorney who can fully explain all options and procedures along the way.

15. Do tenants stand a chance of winning their case against a determined landlord?

Every case must be evaluated on its own facts. However, even if the tenant has a strong case it is still important that they be represented by an experienced tenant lawyer who can secure the best possible result as quickly as possible. A tenant should question a prospective lawyer about their background and experience, ask for references, ask what percentage of their practice involves landlord/tenant eviction cases and whether they also represent landlords. Hiring a good tenant lawyer can often save the tenant money in the long run because it can often be expensive to undo mistakes made by someone unfamiliar with the area. Also, if the landlord knows the tenant has a good tenant lawyer they may be less likely to seek that tenant’s eviction in the future.

James B. Fishman is a Tenant Attorney practicing in New York City. He may be reached at (212) 897-5840, also see www.tenantslaw.net

Fishman & Neil, LLP
305 Broadway Suite 900
New York, New York, NY 10007
(212) 897-5840
fax (212) 897-5841
www.tenantslaw.net
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Postby TenantNet » Thu Apr 30, 2009 8:53 am

Below is a recent decision where a tenant has lost her long-time rent stabilized apartment by not following the rules. I frequently meet people who think all they have to do is have one's taxes, driver's license and voter registration be in NYC and they are then free to live elsewhere.

For long-time readers of this forum, I've always said those things really don't matter that much and -- in the end -- what really matters is where you actually live. Of course you can have vacation cottages, investment property and even a second home. But what matters for purposes of a rent stabilized non-primary case is where you actually sleep and where you spend your days. That you can prove in any number of ways (some mentioned here).

When a case is filed, the court looks back two years. In this case the judge considered whether the tenant spent 183 days in her apartment. I've had some lawyers tell me 189 days, so I'm not certain which is correct, but in the broader scheme, those six days won't matter unless it's really close.


CIVIL COURT OF THE CITY OF NEW YORK
COUNTY OF NEW YORK
--------------------------------------------------------------J
409-411 SIXTH STREET LLC,
Petitioner,
-against-

MASAKO MOGI,
Respondent.
--------------------------------------------------------------J{
SCHNEIDER, J.
INDEX NO. 50600/07

Amended
DECISION/ORDER

This nonprimary residence holdover proceeding was tried before me in December 2007 and January 2008. Both parties were represented by counsel. Petitioner contends that respondent primarily resides in a house she owns in rural Vermont. Respondent concedes that she spends time at the Vermont house, but says that her rent stabilized apartment on East 6th Street in Manhattan is her primary residence.

Petitioner called its managing agent, respondent Magi, a private investigator, a representative of Con Edison, and an expert on electrical usage, as its witnesses. Respondent testified on her own behalf, and called her close friend Noriko Isagi, three neighbors at the building, and an additional friend as witnesses. Both sides also relied on a voluminous documentary record. On the basis of the credible evidence at trial, I make the following findings of fact.

Respondent Masako Magi is a citizen of Japan and a legal permanent resident of the United States. She is retired, and receives Social Security benefits. She supplements this income by doing freelance translating work. She has been the rent stabilized tenant ofthe subject apartment since 1980. Ms. Mogi purchased her house in Vermont in 1990. The house consists of a single open room containing living space and a kitchen area, a bathroom, and a sleeping loft.

Ms. Magi has had a close personal relationship with Noriko Isogai since about 1981. The two have a joint bank account and a joint credit card account. They own a car together. Ms. Isogai, who is a wood carver, lives full time in Ms. Magi's cabin in Vermont. She has built a studio for herself on the property and participates in artisan's groups and activities in the area. She travels to New York only occasionally. The car the two women own is registered in Vermont, and both women have Vermont driver's licenses. The car is almost always kept in Vermont, though Ms. Mogi and Ms. Isogai occasionally drive it to New York. Ms. Magi more commonly travels between New York and Vermont on the train.

The predicate notice in this case was served in October 2006. The relevant time frame for determining Ms. Mogi's primary residence is thus 2004, 2005, and 2006 until the date of the notice. During this time frame, Ms. Mogi filed only one tax return, for 2004. That return was filed using her New York City address. She filed her state tax return as a resident of New York State and New York City.

The three New York neighbors who testified all said they saw Ms. Mogi regularly at the building, but none had any detailed knowledge of when she was in New York and when she was in Vermont. Similarly, Ms. Magi's friend Earl Giaquinto, who waters her plants and takes in her mail when she is away from New York, did not have any detailed knowledge of her comings and goings. Ms. Mogi herself also testified that she could not identify dates when she was in Ne\v York and dates when she was in Vernont.

I did not find the testimony of petitioner's private investigator, who spoke to Mr. Giaquinto without accurately identifying herself, persuasive. She conceded that Mr. Giaquinto told her that Ms. Magi lived both in New York and in Vennant. She testified that he told her that Ms. Magi was "mostly" in Vermont. Mr. Giaquinto said he told the investigator that Ms. Magi was actually in Vermont at the time of the conversation. The difference seems most likely to be the result of a misunderstanding.

Petitioner made much of the fact that Ms. Magi's electrical usage in her New York City apartment was well below average, and that it was significantly lower than her usage in Vermont. I did not find this evidence particularly persuasive. The parties agree that Ms. Mogi does not occupy the New York City apartment full time. The Vermont house, on the other hand, is occupied by Ms. Isogai full time, and by Ms. Magi at least half the time. In addition, the Vermont electric bills cover heat and hot water for the house, while those services to the New York apartment are provided by the petitioner.

The most persuasive evidence offered at trial was Ms. Magi's banking and credit card records. These records include Ms. Magi's credit, debit, and ATM transactions over the relevant period, and appear to give an accurate account of her location for most days between 2004 and October 19, 2006.

Ms. Magi testified that Ms. Isogai sometimes used her credit and debit cards, so that an analysis of these transactions would appear to show that she was in Vermont on some occasions when she was actually in New York. An examination of the transactions themselves, though, does not, with the exception of a handful of days, show periods with overlapping transactions in New York and Vermont. Rather, there are stretches of time in which all the transactions are in Vermont, and stretches of time in ·which all the transactions are in New York.

There are, of course, many days without any transactions. Where those days occur between two days with New Yark transactions, a reasonable inference may be drawn that Ms. Mogi remained in New York. Where they occur between two Vermont transactions, a similar inference may be drawn that Ms. Mogi remained in Vermont. Where a day without transactions occurs between a New York transaction and a Vermont transaction, no inference can be drawn, but I found only 57 of these "unknown" days out of 1023 in the relevant period.

Ms. Mogi spent 120 days during the relevant time period visiting her family in Japan. These days tell us nothing about her primary residence. Of the remaining 846 "known" days in the time period, Ms. Mogi appears to have spent 378, or 45%, in New York and 468, or 55% in Vermont.

Based primarily upon the banking and credit card records, I find that respondent did not spend 183 days per year in her New York apartment. Accordingly, final judgment is directed for petitioner. Issuance of the warrant is stayed through December 31, 2008 provided that respondent pays any outstanding use and occupancy at the last rental rate on or before August 31, 2008 and that she pays ongoing use and occupancy at the same rate by the tenth of each month during the stay period.

Dated 8/8/08

JHC
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A Legal Victory for Tenants

Postby TenantNet » Tue Jul 21, 2009 8:38 am

Note: We've often said that the most critical factor in a non-primary residence case brought by a landlord was where the tenant actually lives, i.e., where the tenant beds down for over 180 days per year (some say it must be more than 183 days; others say 189 days). And to a large extent that's true.

Too many tenants improperly believe that certain arrangements, i.e, where they are registered to vote, where they pay their taxes and where they might have a drivers license, by themselves, determine their primary residence for purposes of satisfying rent stabilization requirements. Those tenants are mistaken and may find out the mistake by being evicted. Those facts are evidence, nothing more, that can go to finding whether or not the tenant actually lives in a premises. Other facts might be demonstrable activities live phone usage, cash receipts from local merchants, Con-Ed utility bills and the like.

This case below establishes another basis in such cases. While the narrow issues of caring for one's parents away from one's rent stabilized home is the gravamen of this matter, one underlying issue is that the tenant had not established any alternate home. She stayed with friends. Some cases revolve around the use of a second home owned by the tenant. While in many cases such homes, if not an investment property, might be a vacation home. Landlords will often claim that such homes or cottages are in fact the real primary residence. In this case, there was no alternate home.

In addition, what supports the fact that the tenant had not established an alternate residence is that her daughter was still in residence and that she had not moved any furniture out of the unit.

Ironically the tenant in this case was represented by Adam Leitman Bailey, a notorious landlord attorney (that's correct) who we would not recommend to anyone. (se did have a tenant attorney for the appeal).


A Legal Victory for Tenants
http://www.gothamgazette.com/article/la ... 21/13/2970
by Emily Jane Goodman
July 2009

"Your aged parents or your home" is not a choice anyone would want to face, especially when your parents are 78 and 80, and your New York apartment is rent stabilized. But that is exactly what confronted Charlene Lee of Manhattan.

In litigation that began in 2002 and ended in July 2009, the landlord, 542 East 14th Street LLC, commenced a holdover proceeding in Housing Court charging that Lee, a nurse, had breached her lease and was no longer entitled to her apartment. The landlord claimed her apartment was not her primary residence because she had spent most of the previous two years in California. But Lee established that she had been in California caring for her ailing parents, and that her New York apartment continued to be occupied by her 16-year-old daughter, then a student at Stuyvesant High School. (During the long course of this litigation, the daughter, Cindy, has graduated from high school and college and is now in her last year of medical school, according to the New York Law Journal.)

The law requires the tenant of a rent-stabilized apartment to occupy the premises for at least 180 days a year for it to be considered a primary residence. Only primary residences are entitled to rent regulation. But although Lee did not personally meet the 180-day-in-the-apartment-test, she also had no other residence. While in California to care for her sick, non-English speaking parents, Lee stayed with various friends and relatives. She returned to New York, her daughter and her apartment intermittently, staying for several weeks at a time.

The Legal Rulings

Housing Court Judge Kevin McClanahan dismissed the landlord's petition, finding that the 14th Street apartment was Lee's primary residence. He noted that she maintained her furniture and personal property at the Manhattan apartment and that it was her address for banking, taxes, utilities and mail, as well as the place where her daughter lived. Also, Charlene Lee had never established in California the indicia of permanent residency, such as acquiring a home or voting there. No evidence was presented to rebut the allegations of family illness, and the court rejected landlord's argument that the illness of Lee's parents was "merely a pretext" to keep her apartment while actually residing in California.

The landlord also lost the next round, the Appellate Term, where two judges out of three agreed with the Housing Court findings. The Appellate Division, at the next appellate level, has now unanimously, affirmed the finding of the two lower courts. In an opinion by Justice Peter Tom, the Appellate Division addressed for the first time the question of whether a tenant's absence for the reasons presented in this case affect their eligibility for rent regulation. The court found that the need to care "for a sick relative is a viable defense to a non-primary residence claim by a landlord." This circumstance has now joined other possible exceptions to the primary residence requirement, such as military service, hospitalization, "or other reasonable grounds."

In all, eight judges have decided in favor of Lee. Moreover, her attorneys have been awarded $34,000 in legal fees.

Limits on Landlords

There are only a few ways for landlords to legally recover possession of the apartments they own. Evictions may flow from failure to pay rent, if the landlord prevails in a non-payment proceeding brought in Housing Court. Holdover proceedings, such as the one brought against Lee, begin when the owner or management claims that the landlord-tenant relationship has ended, often as a result of primary residence issues. Landlords who suspect tenants of living elsewhere or of not spending half the year in the apartment often hire private investigators or put the resident under surveillance to uncover evidence that the premises in issue are not the primary residence -- that is, to challenge whether there is "an ongoing substantial, physical nexus with the premises for actual living purposes," as the Court of Appeals explained in a case involving Bianca Jagger's residence.

The decision about primary residence is generally not based on one single factor, so landlords may arrange for searches of public records to ascertain where the tenant votes, holds a driver's license, receives mail, for example. They may search property records to see if there is another home in, say, Florida. In addition, some landlords have installed cameras, which time stamps and records the dates the occupant enters the space. An artist reports his was done at her loft. A Westside tenant whose spouse lives in another city, divides his time, between Manhattan and the Midwest, literally counting the days in New York in order to keep his primary residence here, and not lose the apartment he lived in for decades, prior to his recent marriage.

In 2008, Bianca Jagger, the former wife of Mick Jagger of the Rolling Stones, lost "an action of ejectment" in the state Supreme Court rather than Housing Court, a decision which was affirmed by the highest court, the Court of Appeals. In that case, immigration was the critical factor, since Jagger, a British citizen, was in the United States on a tourist visa. The court found that she could not have both "a principal, actual dwelling place" outside the country and also have her primary residence in New York City. The two circumstances were called "logically incompatible.

It is considered unlikely that the Court of Appeals will hear the Charlene Lee case. That would allow the decision letting her keep the apartment to stand.

Lee was represented at trial by the office of Adam Leitman Bailey, P.C., and on appeal by David E. Frazer. The landlord was represented by Borah, Goldstein, Altschuler, Nahin & Goidel.

Emily Jane Goodman is a New York State Supreme Court Justice
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Postby TenantNet » Tue Jul 21, 2009 8:42 am

542 E. 14th St. LLC v Lee
2009 NY Slip Op 05689
Decided on July 7, 2009
Appellate Division, First Department
Tom, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 7, 2009
SUPREME COURT, APPELLATE DIVISION
First Judicial Department

Peter Tom, J.P.
David Friedman
James M. Catterson
Karla Moskowitz
Dianne T. Renwick, JJ.
570106/06

597

542 East 14th Street LLC,
Petitioner-Appellant,

v

Charlene Lee,
Respondent-Respondent, Cindy Lee, et al., Respondents.



Petitioner appeals from an order of the Appellate Term of the Supreme Court of the State of New York, First Department, entered December 28, 2007, affirming (1) an order of the Civil Court, New York County (Kevin C. McClanahan, J.), entered December 22, 2005, after a nonjury trial, which dismissed the petition in a primary holdover proceeding, and (2) an order of the same court and Judge, entered on or about March 27, 2006, which denied petitioner's motion to vacate the attorneys' fees award, and modified a judgment of the same court and Judge, entered March 2, 2006, to the extent of reducing such fees.


Borah, Goldstein, Altschuler, Nahins & Goidel, P.C.,
New York (Paul N. Gruber of
counsel), for appellant.


David E. Frazer, New York, and Adam Leitman
Bailey, P.C., New York (William J. Geller and Dov Treiman of
counsel), for Charlene Lee, respondent.



TOM, J.P.

Respondent tenant's relocation to California for a period of nearly two years to care for her elderly parents constitutes a reasonable ground for her temporary absence from her rent-stabilized apartment, supporting Civil Court's decision that the premises continued to be maintained as tenant's primary residence. In view of the liberal discovery available in a nonprimary residence proceeding, petitioner landlord had the means to seek relevant proof regarding tenant's parents' infirmities, and the absence of such evidence is not a basis for disturbing the court's findings.

Tenant Charlene Lee occupies the subject apartment under a rent-stabilized lease entered into in September 1997 and periodically renewed thereafter. By timely notice, landlord terminated the tenancy effective October 31, 2002 on the ground that tenant had relocated to California, that she occupied the apartment less than 180 days a year and that her daughter, Cindy, was occupying the premises. When tenant failed to surrender possession, this holdover proceeding ensued. In her answer, tenant denied landlord's allegations, asserted that Cindy was entitled to succession rights and sought attorneys' fees. Landlord conducted examinations before trial of both occupants of the apartment, during which tenant explained that she went to California to care for her ailing parents and that her daughter remained in the apartment to complete her studies at Stuyvesant High School, from which she graduated in 2003.

After trial, Civil Court dismissed the petition and awarded tenant attorneys' fees, finding that the evidence established that tenant had an ongoing substantial physical nexus to the New York apartment and a valid reason for her temporary relocation that did not, in and of itself, mandate a finding of nonprimary residence.

Landlord appealed to Appellate Term from the order issued after trial, the judgment on legal fees and the denial of landlord's motion for a new hearing on fees. Appellate Term affirmed the dismissal of the holdover proceeding and modified the fee award, revising it downward to $34,053 without elaboration (18 Misc 3d 98 [2007]). A dissenting Justice expressed dismay that tenant had left Cindy alone in New York, finding tenant's explanation for her absence from the premises to be pretextual and undertaken to obtain succession rights for her daughter.

Landlord appealed to this Court by permission of Appellate Term, asserting that tenant's extended absence does not fall into any recognized exception to the requirement that she use the leased premises as her primary residence. Landlord argues that tenant failed to establish that the care she claims to have provided to her parents was required by any demonstrated medical condition, that her explanation for her absence was pretextual, and that the award for tenant's attorneys' fees, even as reduced, was excessive.

The exemption from statutory protection for dwelling units not used by the tenant as a primary residence is a universal feature of the rent regulatory framework (see Avon Bard Co. v Aquarian Found., 260 AD2d 207, 208 [1999], appeal dismissed 93 NY2d 998 [1999]). Thus, the governing statute provides that a landlord may recover possession of a rent-stabilized apartment if it "is not occupied by the tenant . . . as his or her primary residence" (Rent Stabilization Code [9 NYCRR] § 2524.4[c]). "Primary residence" is judicially construed as "'an ongoing, substantial, physical nexus with the . . . premises for actual living purposes'" (Katz Park Ave. Corp. v Jagger, 11 NY3d 314, 317 [2008], quoting Emay Props. Corp. v Norton, 136 Misc 2d 127, 129 [1987]). Although the statutes do not define "primary residence," the Rent Stabilization Code does provide that "no single factor shall be solely determinative," and lists "evidence which may be considered" in making the determination (Rent Stabilization Code [9 NYCRR] § 2520.6[u]). Rent Stabilization Code § 2520.6(u)(3) refers to the safe harbor protection of § 2523.5(b)(2) against loss of primary residence by reason of absence due to certain conditions such as active military duty, full time studies or hospitalization, plus "other reasonable grounds." Thus, the Code allows the court to apply the flexible definition of § 2520.6(u) or the "other reasonable grounds" clause of § 2523.5(b)(2) in determining primary residency. A tenant's provision of medical care to another person is not listed among the excusable factors (Rent Stabilization Code [9 NYCRR] § 2523.5[b][2]). Hence, to be considered a protected absence, it must come within the ambit of the statutory protection afforded to "other reasonable grounds" for alternative residence.

Whether a temporary absence to provide medical care to others constitutes a reasonable ground for residing elsewhere, thereby precluding a finding that a rent-stabilized primary residence has been abandoned, is a question that has not been decided by this Court. However, Appellate Term has ruled that a temporary relocation to care for an infirm parent does not compel a finding that a rent-stabilized apartment is not being used as a primary residence (see e.g. Hudsoncliff Bldg. Co. v Houpouridou, 22 Misc 3d 52, 53 [2008] [protracted absence to care for bedridden mother "in and of itself does not mandate a finding of nonprimary residence"]). In that case, "The trial evidence established that while tenant temporarily relocated to care for her mother, she maintained an ongoing physical nexus to the subject apartment, returning for brief intervals, keeping her furniture and personal belongings in the apartment, and receiving mail there" (id.).

In the matter at bar, tenant maintained at least this nexus with the subject premises and, as noted by Civil Court, "left behind the most important person in her life," her daughter, then 16 years old. As this Court has noted, a reviewing court is obliged to defer to the findings of the trial court "unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence, especially when the findings of fact rest in large measure on considerations relating to the credibility of witnesses" (Claridge Gardens v Menotti, 160 AD2d 544, 544-545 [1990]). Civil Court's findings are amply supported by record evidence and will not be disturbed.

At trial, the building superintendent testified that he saw tenant only infrequently in 2001 and 2002 but regularly saw Cindy at the premises. Tenant testified that she left her position as a nurse at New York University Medical Center to provide regular care to her ailing parents in California on a daily basis from the spring of 2001 to December 2002. She explained that her father was almost 90 years old and suffered from various systemic conditions, including lupus, hypertension, a herniated lumbar disc, lumbago, allergies and hearing loss, and that her mother, who was then recovering from knee surgery, was physically incapable of caring for her husband. Tenant tended to her parents' health needs by administering medication, checking their vital signs and managing their daily personal care. She also took her parents, who speak Mandarin, to medical appointments where, due to her proficiency in both English and Mandarin, she could facilitate communications between them and their physicians.

Tenant obtained employment doing research while in California to financially support herself and her daughter back in New York. She explained her need to obtain a California driver's license during her temporary stay in the state so she could commute to her job and take her parents to their doctors. Tenant explained that she never rented or owned any realty in California but had lived in makeshift quarters during her temporary stay there, first in a residence owned by her sister and brother-in-law and later at a friend's house. Her sister lived near her parents but could not take care of them due to the demands of her job. Tenant explained that she did not live with her parents on a full-time basis since they lived in a tiny one-bedroom unit in a senior care facility, and her residence there would have violated the facility's rules. As to taxes, tenant listed the Manhattan apartment as her residence in connection with the returns filed for two of the three years provided. She never voted in California, maintained bank accounts in New York and provided all financial support for her daughter in New York. When her parents' conditions stabilized in late 2002, tenant returned to New York.

While tenant was in California, Cindy remained in the apartment while attending Stuyvesant High School, maintaining a perfect attendance record, graduating with a 3.9 grade point average and going on to attend Columbia University's Barnard College. Tenant returned to the apartment once every few months (staying between two to five weeks), maintained bank accounts listing the apartment as her residence, kept her furnishings and personal possessions there, and maintained the utility accounts at the premises.

The evidence presented in this case supports the trial court's findings that tenant maintained an ongoing substantial physical nexus to the New York apartment and that she did not abandon the subject stabilized premises but maintained it as her primary residence while she was temporarily in California caring for her infirm elderly parents.

The absence of medical and testimonial proof of the nature of the maladies afflicting tenant's parents does not support an adverse inference that their alleged infirmities were merely a pretext to excuse tenant's absence from the rent-stabilized apartment. While information concerning the diseases or conditions for which they were treated is protected by the physician-patient privilege (CPLR 4504), the fact of medical treatment, including the frequency and dates thereof, is not (see Hughson v St. Francis Hosp. of Port Jervis, 93 AD2d 491, 499 [1983]). Liberal discovery is provided to a landlord in a nonprimary residence proceeding (Cox v J.D. Realty Assoc., 217 AD2d 179, 183-184 [1995]), and tenant's disclosure, during her pretrial deposition, that she went to California "to care for my very, very sick father" afforded landlord the opportunity to inquire further and to conduct such additional discovery as it deemed advisable. Having thus been put on notice of the reason for tenant's temporary relocation to California, landlord bears sole responsibility for its failure to make use of the available discovery devices, and its appellate contention that the trial court erred when it "accepted this newly interjected defense" is wholly devoid of merit. In any event, the quantum of proof adduced by tenant merely presents an issue in respect of the weight, not the sufficiency, of the evidence for resolution by the trial court. Tenant's testimony concerning her parent's ailments is uncontroverted, and there is no basis for disturbing Civil Court's decision.

Finally, while not every parent faced with the unenviable choice of remaining in New York to care for a teenaged daughter or going to California to care for aged and infirm parents would choose temporary relocation, that choice was tenant's to make. While the propriety of her decision is not material to a determination of the merits of this case, we note that tenant's confidence in her daughter's maturity was well founded, as demonstrated by Cindy's perfect school attendance record and her high academic achievements.

As to attorneys' fees, the amount awarded is a matter of discretion that should not be disturbed absent an abuse thereof (11 Park Place Assoc. v Barnes, 220 AD2d 339 [1995]; see also DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881 [1987]). As this Court stated in Jordan v Freeman (40 AD2d 656, 656 [1972]), "The relevant factors in the determination of the value of legal services are the nature and extent of the services, the actual time spent, the necessity therefor, the nature of the issues involved, the professional standing of counsel, and the results achieved." Civil Court conducted an independent evaluation of the factors bearing on counsel's fee request of $43,188.01, finding that it "on the whole was reasonable and adequate." After deducting $4,134 for some duplicated efforts, the court awarded $39,053. Appellate Term further reduced the fee award by $5,000 to $34,053.

Landlord maintains that the award, even as reduced, remains excessive, contending that it does not comport with the amounts invoiced, that seven associates worked on the case with each presumably having to gain familiarity with the file, that the firm double-billed by assigning two attorneys to the trial, and that the lead counsel's hourly rate was excessive and unreasonable. However, tenant presented invoices totaling $37,704.68. Civil Court approved as reasonable a capped rate for the lead attorney that it reduced from $350 per hour to $325 per hour. The record reflects that three associates assumed primary responsibility for the matter and that the other four billed a mere 8.45 hours for undertaking specific and limited tasks. To the extent any of the work was redundant, as landlord claims, we note that Civil Court had already reduced the amount sought and that Appellate Term further reduced the award. As to landlord's objection to some of the motion practice, particularly tenant's
unsuccessful summary judgment motion, an award of attorneys' fees does not require success at all stages of the litigation, only that "the claimant must simply be the prevailing party on the central claims advanced, and receive substantial relief in consequence thereof" (Board of Mgrs. of 55 Walker St. Condominium v Walker St., 6 AD3d 279, 280 [2004]).

The findings of a trial court should not be disturbed where it has "considered the relevant factors in determining reasonable attorney fees . . . and [its] findings are supported by the record" (1050 Tenants Corp. v Lapidus, 52 AD3d 24, 248, 248 [2008]). Civil Court's award of legal fees to tenant has ample record support, and landlord has asserted no basis upon which the award, as reduced by the Appellate Term, should be vacated or reduced.

Accordingly, the order of the Appellate Term of the Supreme Court of the State of New York, First Department, entered December 28, 2007, affirming (1) an order of the Civil Court, New York County (Kevin C. McClanahan, J.), entered December 22, 2005, after a nonjury trial, which dismissed the petition in a primary holdover proceeding, and (2) an order of the same court and Judge, entered on or about March 27, 2006, which denied petitioner's motion to vacate the attorneys' fees award, and modified a judgment of the same court and Judge, entered March 2, 2006, which had awarded respondent tenant attorneys' fees of $39,053, to the extent of reducing the award to $34,053, should be affirmed, without costs.

All concur.

Order of the Appellate Term of the Supreme Court of the State of New York, First Department, entered December 28, 2007, affirming (1) an order of the Civil Court, New York County (Kevin C. McClanahan, J.), entered December 22, 2005, and (2) an order of the same court and Judge, entered on or about March 27, 2006, affirmed, without costs.

Opinion by Tom, J.P. All concur.

Tom, J.P., Friedman, Catterson, Moskowitz, Renwick, JJ.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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Golub Notices

Postby TenantNet » Sun Jul 10, 2011 11:55 am

'Golub' Notices
Warren A. Estis and Jeffrey Turkel
New York Law Journal
11-01-2006

Sections 2524.4 and 2524.5 of the Rent Stabilization Code provide, inter alia, that an owner can refuse to renew a tenant's stabilized lease on such grounds as non-primary residence, owner occupancy and withdrawal from the rental market. Section 2524.2(c)(3) provides that the termination notice to be sent to the affected tenant in such instances shall be served:

. . . at least 90 and not more than 150 days prior to the expiration of the lease term . . . .

These 90/150-day notices are commonly known as "window period" or "Golub" notices. The latter name springs from the case of Golub v. Frank, 65 N.Y.2d 900, 493 N.Y.S.2d 451 (1985), wherein the Court of Appeals held that the failure to serve a window period notice bars an owner from proceeding to recover an apartment based on non-primary residence.

In the non-primary residence case of Skyview Holdings, LLC v. Cunningham, N.Y.L.J. Oct. 24, 2006, at 22, col. 1 (App. T. 1st Dep't), the landlord mailed the Golub notice to the tenant 92 days before the August 31, 2002 lease expiration date. Rent Stabilization Code Section 2524.2(c)(3) was seemingly satisfied.

Housing Civil Court Judge Eardell J. Rashford, however, ruled that the notice was untimely under authority of Matter of ATM One, LLC v. Landaverde, 2 N.Y.3d 472, 779 N.Y.S.2d 808 (2004). In Landaverde, the Court of Appeals held, with respect to a 10-day notice to cure, that the landlord must allow, in addition to the prescribed period for service, an extra five days for mailing. Judge Rashford reasoned that Landaverde imposed the same five-day requirement on the service of Golub notices. Because the landlord in Skyview had mailed the Golub notice on the 92nd day, and not on the 95th, Civil Court declared the notice void and dismissed the proceeding.

The issue then went up to the Appellate Term, which ruled last month that Landaverde should not be extended to Golub notices. Before addressing Skyview, we first turn to Landaverde.

'Landaverde'

In Landaverde, a Nassau County landlord mailed a notice to cure to a tenant pursuant to Section 2504.1(d)(1) of the Emergency Tenant Protection Regulations, which implement the Emergency Tenant Protection Act outside of New York City. The regulation states in relevant part that a notice to cure must set forth "the date certain by which the tenant must cure said wrongful acts or omission, which date shall be no sooner than 10 days following the date such notice to cure is served upon the tenant."

The tenant in Landaverde received the notice with nine days remaining in the cure period. The District Court (Janowitz J.) held that the notice was defective under CPLR 2103(b)(2), which adds five days to certain prescribed periods when service is made by mail. Appellate Term affirmed the result below, but held that CPLR 2103(b) only applied to papers served in a pending action, not to a pre-action notice to cure. Instead, Appellate Term held that because the tenant had only nine days to cure, the notice was defective. 190 Misc.2d 76, 736 N.Y.S.2d 833 (App. T. 2d Dep't 2001).

The Appellate Division, Second Department, by a 3-2 majority, affirmed Appellate Term. 307 A.D.2d 922, 763 N.Y.S.2d 631 (2d Dep't 2003). The majority wrote:
"The principal advantage of the more practical construction placed on the regulation by the Appellate Term is that it avoids the possibility that, in a case involving an abnormally extended delay in the delivery of the mail, a tenant might not be told of the date within which he or she may cure a violation until after that date has actually passed, a possibility that, under the construction advocated by the dissent, cannot be excluded. When the proper construction to be placed on a regulation or statute is open to debate, we should adopt that construction which more reliably tends to avoid 'results which are absurd, unreasonable or mischievous' [citations omitted]." FN1

The Court of Appeals thereafter affirmed. The Court first observed that "regulations-like statutes-should be construed to avoid objectionable results." FN2 The Court then noted that a primary purpose of the Emergency Tenant Protection Act was to address a serious public emergency as evidenced by "an acute shortage of housing accommodations." FN3 Having laid this groundwork, the Court of Appeals ruled:
"Reading the service provision (9 NYCRR 2508.1[a]) together with the notice to cure regulation (9 NYCRR 2504.1[d]), we conclude that District Court's approach best effectuates the regulatory purpose to afford tenants a 10-day cure period before they may be subject to lease termination for designated violations. We therefore hold that owners who elect to serve by mail must compute the date certain by adding five days to the 10-day minimum cure period (see e.g. CPLR 2103(b)(2))." FN4


Post-'Landaverde' Confusion

As Landaverde progressed toward the Court of Appeals, the question in New York City turned to whether owners serving Golub notices under Rent Stabilization Code § 2524.2(c)(3) had to add an extra five days for mailing, i.e., whether the window period was in fact between 95 and 150 days. Lower courts split on the issue. In Lynch v. Dirks, N.Y.L.J., Jan. 5, 2005, at 19, col. 3 (Civ. Ct. N.Y. Co.), and Shoshany v. Goldstein, N.Y.L.J., Feb. 9, 2005, at 18, col. 3 (Civ. Ct. N.Y. Co.), the Courts applied Landaverde to the service of Golub notices. In Shoshany, Judge Joseph E. Capella wrote:
"If the essence of Landaverde is to enforce and make meaningful a prescribed minimum period for notices, then a proper Golub notice must provide a tenant with a minimum of 90 days to either challenge the grounds for nonrenewal or allow the tenant time to make other living arrangements. Therefore, this court finds that the petitioner's Golub notice was not served in a timely manner, and the respondents' motion is granted and the proceeding is dismissed."

In K.S.L.M. Columbus Apts. Inc. v. Bonnemere, 8 Misc.3d 1026(A), 806 N.Y.S.2d 445 (Civ. Ct. N.Y. Co. 2004), Judge Kevin C. McClanahan declined to apply Landaverde to the service of Golub notices, holding:

Where an owner believes that a dwelling unit is not the tenant's primary residence, the owner can invoke this ground to deny the tenant's right to a renewal lease. The Golub Notice is sent during the renewal window period with the purpose of notifying the tenant of the owner's intention not to offer a renewal lease. [Citation omitted.] Unlike both the notice to cure and notice of termination, the Golub Notice does not contemplate or require any affirmative steps by the tenant. Any action taken by the tenant immediate or otherwise will not negate the landlord's intent not to renew the lease."

'Skyview'

The Golub notice issue was settled, at least for the time being in the First Department, when Appellate Term ruled last month in Skyview. The panel, consisting of Justices William J. Davis, Phyllis B. Gangel-Jacob and William P. McCooe, declined to extend Landaverde to Golub notices. In a per curiam opinion, the court wrote:
That the Landaverde rule was meant to be confined specifically and narrowly to the 10-day cure notice there involved is reflected in several passages of the Court's opinion, including language declining to extend the five-day mailing allowance provided by CPLR 2103 to the commencement of summary proceedings generally . . . and its concluding statement 'encourag[ing] DHCR to amend its regulations consistent with this determination in order to provide better guidance to parties who elect to serve notices to cure by mail [emphasis added] (id.).'

Echoing Judge McClanahan in K.S.L.M. Columbus Apts., the panel focused on the length of the 90/150 day window period:
"Nor are any of the policy concerns giving rise to the 'practical and fair solution' fashioned by the Landaverde court implicated in this situation where, as here, a 90/150 day notice of nonrenewal is served by mail. Unlike a 10-day notice to cure, a 90/150 notice of nonrenewal does not require a tenant to undertake an affirmative act within narrow time constraints, but instead merely calls upon a tenant to elect whether to contest the merits of a landlord's possessory claim following a lease termination set months in advance or to vacate the demised premises in the interim. Thus, unlike a tenant who potentially may be deprived of the full benefit of the mandated 10-day cure period by a landlord's mailing of a notice to cure, a tenant who is served by mail with a nonrenewal notice within the 90/150 day period prescribed by the code - even a notice whose delivery is unusually delayed - cannot be reasonably said to be 'disadvantaged by an owner's choice of service method' (Landaverde, 2 N.Y.3d at 478)."

In a separate opinion, Justice McCooe concurred only in the result. Justice McCooe held that Skyview was distinguishable from Landaverde in that the tenant in Landaverde actually received the notice with just nine days remaining in the cure period, whereas the tenant in Skyview did not assert that she received the Golub notice with less than 90 days remaining before the lease expired.

Given the importance of this issue to the landlord-tenant bar, it is expected that the tenants in Skyview, and its companion case, Shoshany v. Goldstein, N.Y.L.J., Oct. 20, 2006, at 32, col. 1 (App. T. 1st Dep't), will seek leave to appeal to the Appellate Division.

Warren A. Estis is a founding partner at Rosenberg Estis, and Jeffrey Turkel is a partner at the firm.

Endnotes:

1 307 A.D.2d at 924-25.
2 2 N.Y.3d at 477.
3 Id.
4 2 N.Y.3d at 477-78.
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Postby TenantNet » Wed Feb 08, 2012 5:23 pm

See http://tenant.net/phpBB2/viewtopic.php?p=46972 for a decision with a good discussion of the issues pertinent to succession and non-primary claims.
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Postby TenantNet » Thu Mar 08, 2012 10:36 am

Another case where Golub Notices are discussed. Thanks to NyHawk for coming up with this one...

Raffone v Schreiber
2008 NY Slip Op 28017
Decided on January 14, 2008
Civil Court Of The City Of New York, New York County
Capella, J.


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on January 14, 2008
Civil Court of the City of New York, New York County

Claudia Raffone, Petitioner-Landlord,

-against-

John Schreiber, Respondent-Tenant, "John Doe" and "Jane Doe," Respondent-Undertenants.

82154/07

Petitioner's Attorney:
Michael A. Pensabene, Esq.
Rosenberg & Estis, P.C.
733 Third Avenue
New York, New York 10017

Respondent's Attorney: Steven B. Sperger, Esq.
Sperber, Denenberg & Kahan, P.C.
48 West 37th Street, 16th Floor
New York, New York 10018

Capella, Joseph, J.

The respondent seeks dismissal (CPLR 3211(a), 3212) of the instant nonprimary residence holdover proceeding on the premise that the predicate non-renewal of lease ("Golub") notice relied upon by the petitioner is stale. In opposition, the petitioner cross moves to strike the respondent's first through sixth and ninth affirmative defenses, and for an order granting discovery and use and occupancy. The Golub notice is dated January 19, 2006, and states, inter alia, an intent by the petitioner not to renew the parties' lease agreement due to expire on April 30, 2006, based on the petitioner's belief that the respondent does not occupy the subject apartment as his primary residence. Some 20 months later the petitioner commenced the instant proceeding predicated upon this very Golub notice.

According to the respondent, the petitioner failed to commence this proceeding within a reasonable amount of time after service of the Golub notice, and given the lapse of some 20 months, the Golub notice has become stale and ineffective. (Goldstein v Simensky, NYLJ, Jan. 13, 1989, at 21, col 2 [App Term, 1st Dept]; South Shore v Olsen, NYLJ, March 14, 2001, at 20, col 3 [Civ Ct, NY County 2001]; Mau v Stapelton, 136 Misc 2d 793 [Civ Ct, Kings County 1987]; Shaw v Catiglioni-Spalten, NYLJ, May 14, 2003, at 21, col 6 [Civ Ct, Kings County 1987].) On the other hand, the petitioner alleges that the delay in commencing this proceeding was due to financial difficulties she incurred as a result of various litigation and repair costs associated with the subject building. For example, the petitioner states that before service of the Golub notice, she commenced two nonpayment proceedings against the petitioner, one in February 2005 and another in November 2005. The November 2005 nonpayment proceeding resulted in a stipulation of settlement dated April 5, 2006, which specifically provides that it was without prejudice to the petitioner's Golub notice. In addition, the petitioner states that "in an effort to cut down [her] costs, [she] intended to switch from [her current counsel] to a less expensive law firm to prosecute [this nonprimary residence proceeding] on [her] behalf." In the interim, and further delaying this proceeding, the petitioner alleges that she "was using [her] time and resources to address repair priorities in the Building [sic], which compelled [her] to endure [*2]further financial difficulty . . . [I]t was not until recently that [she] was able to muster up the financial wherewithal to prosecute this proceeding." The petitioner did not change attorneys, and has not billed or accepted rent from the respondent since April 2006.

Although all of the cases relied upon by the respondent address the issue of stale and ineffective predicate notices, three of the four cases involved situations in which a landlord sought to reuse a predicate notice from a prior proceeding. In Goldstein, (NYLJ, Jan. 13, 1989, supra), the Appellate Term, First Department, held that a March 1985 predicate served in a prior discontinued proceeding was stale and ineffective for a proceeding commenced over two years later in August 1987. In South Shore, (NYLJ, March 14, 2001, supra), the court held that a landlord could not rely on 1995 Golub notice from a prior abandoned proceeding to support a subsequent proceeding commenced in 2000. In Mau, (136 Misc 2d 793, supra), the court held that a nine month old predicate (i.e., NYCHA written authorization) from a prior dismissed proceeding is not valid for the purposes of a new proceeding. In the fourth case of Shaw, (NYLJ, May 14, 2003, supra), a Golub notice was found stale and ineffective as a predicate for a proceeding commenced more than 18 years later.

Actually, the first reported case on this issue was in 1973, entitled Haberman v Wager, (73 Misc 2d 732 [Civ Ct, NY County]), in which Judge Irving Younger wrote that the function of a predicate notice is twofold: to end the tenant's estate and inform him/her of the consequence associated with not vacating. In Haberman, the landlord attempted to reuse a three month old 30-day predicate notice from a prior dismissed proceeding. According to Judge Younger, "[b]ecause of the latter feature, I take it that the Legislature did not intend a [predicate] notice to be good forever. If a landlord does not proceed with reasonable diligence (emphasis added), the notice will at some point whatever the period be lose its force, and the tenant reverts to his prior status. The landlord's inaction, in short, will be deemed a waiver of the [predicate] notice." Of course, Goldstein, South Shore, Mau and Haberman all involved the reuse of a predicate notice from a prior proceeding, which is not the case here. And in Shaw, where there was no prior proceeding, the predicate notice was extremely old, 18 years to be exact. In 1975, in the case of Arol v Goodie, (84 Misc 2d 493), the Appellate Term, First Department, permitted the reuse of a two month old predicate notice where, inter alia, the second proceeding was brought promptly and within a reasonable time (emphasis added) after the predicate notice was served. Neither the parties' attorneys, nor the court, was able to find a published decision more directly on point to the facts at hand; however, the aforementioned decisions do provide some guidance.

A rent stabilized tenant is entitled to a renewal lease at the expiration of the lease term unless the landlord elects not to renew on the ground that the subject apartment is not being utilized as a primary residence. (9 NYCRR §§ 2524.1(a), 2524.4(c).) The landlord must serve a Golub notice notifying the tenant of the landlord's intent not to renew the lease within a "window period" of not more than 150 days nor fewer than 90 days prior to the lease expiration. (Golub v Frank, 65 NY2d 900 [1985].) Failure to serve a Golub notice within the "window period" forecloses the commencement of a nonprimary residence proceeding, thereby requiring the landlord to wait until the next "window period." (Berkeley v Camlakides, 173 AD2d 193 [1st Dept 1991] aff'd 78 NY2d 1098 [1991.) The Rent Stabilization Code (9 NYCRR §§ 2524.2(c)(2), 2524.4(c)) is silent as to when, if ever, a Golub notice becomes stale, or how long after service of same must a proceeding be commenced. Looking elsewhere, but recognizing that they pertain to situations in which an action has already been commenced, and therefore, are [*3]not directly on point, some additional guidance is available from the Civil Practice Law and Rules ("CPLR") and the Uniform Civil Rules for the New York City Civil Court ("Uniform Rules"). For example, a year after issue is joined, the CPLR permits a court to dismiss an action where it finds that the plaintiff has unreasonably delayed prosecuting same (CPLR 3216). In addition, the Uniform Rules provide that an action stricken from the calendar may be restored to the calendar by motion made within one year (22 NYCRR § 208.14(c)). Keeping in mind the nature of a summary proceeding, it would be fair to say that a nonprimary residence holdover proceeding should be commenced promptly and within a reasonable time after service of a Golub notice. And given the previously discussed case law and statutes, it would also be fair to say that a two month delay is reasonable (Arol v Goodie, 84 Misc 2d 493, supra), whereas nine months, (Mau v Stapelton, 136 Misc 2d 793, supra), to a year, (CPLR 3216; 22 NYCRR § 208.14(c)), is not.

The earliest the petitioner could have commenced this proceeding is May 1, 2006, but instead, the petitioner commenced this proceeding 16 months later (i.e., August 15, 2007). There was no ongoing settlement negotiations, nor was there a collateral proceeding/action that precluded commencement. After a reasonable opportunity for the petitioner to commence this proceeding, the respondent should be freed from the burden of preparing to defend same. The Golub notice should not "hang like the sword of Damocles over the head of the tenant, to be used at some future date, at the whim of the landlord." (Colavolpe v Williams, 77 Misc 2d 430 [Civ Ct, Kings County 1974].) Furthermore, this court is not persuaded by the petitioner's allegation that the delay in commencing this proceeding was due to financial difficulties incurred as a result of litigation and repair costs associated with her being the owner of the subject building. To the extent that there is some merit to the petitioner's allegation that the respondent does not primarily reside at the subject apartment, there is nothing to preclude the commencement of a similar proceeding at a later date. Of course, a new nonprimary residence proceeding will have to wait until the next "window period." But the fact remains that any further delay is a direct result of the petitioner's own inaction here. This in no way is intended to encourage a tenant to reside elsewhere, but to discourage an owner from unreasonably sitting on a Golub notice, to be used at some future date, at his/her whim. Moreover, this is an exceptional issue because, for obvious reasons, it is very rare that a proceeding of merit is not diligently prosecuted.

Based on the aforementioned, the respondent's motion for dismissal is granted, and the petitioner's cross motion is denied as moot. This constitutes the decision and order of this court, copies of which are being mailed by the court to the parties' attorneys.

___1/14/08 _______________/S/_________________
Date Judge, Housing Court

Petitioner's Attorney:
Michael A. Pensabene, Esq.
Rosenberg & Estis, P.C.
733 Third Avenue
New York, New York 10017

Respondent's Attorney: [*4]
Steven B. Sperger, Esq.
Sperber, Denenberg & Kahan, P.C.
48 West 37th Street, 16th Floor
New York, New York 10018
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Postby TenantNet » Thu Mar 08, 2012 10:40 am

This is the code relating to Golub Notices:

9 NYCRR § 2524.2

§ 2524.2 Termination notices

(a) Except where the ground for removal or eviction of a tenant is nonpayment of rent, no tenant shall be removed or evicted from a housing accommodation by court process, and no action or proceeding shall be commenced for such purpose upon any of the grounds permitted in section 2524.3 or 2524.4 of Part, unless and until the owner shall have given written notice to such tenant as hereinafter provided.

(b) Every notice to a tenant to vacate or surrender possession of a housing accommodation shall state the ground under section 2524.3 or 2524.4 of this Part, upon which the owner relies for removal or eviction of the tenant, the facts necessary to establish the existence of such ground, and the date when the tenant is required to surrender possession.

(c) Every such notice shall be served upon the tenant:

(1) in the case of a notice based upon section 2524.3(f) of this Part, at least 15 days prior to the date specified therein for the surrender of possession; or

(2) in the case of a notice on any other ground pursuant to section 2524.3, at least seven calendar days prior to the date specified therein for the surrender of possession, or in the case of a notice pursuant to section 2524.4(c) of this Part, at least 90 and not more than 150 days prior to the expiration of the lease term; or

(3) in the case of a notice pursuant to sections 2524.4(a) and 2524.5(a) of this Part, at least 90 and not more than 150 days prior to the expiration of the lease term, or in the case of a hotel permanent tenant without a lease, at least 90 and not more than 150 days prior to the commencement of a court proceeding; or

(4) in the case of a notice pursuant to section 2524.4(b) of this Part, at least 120 and not more than 150 days prior to the expiration of the lease term, or within 120 days of the expiration of the tenant's lease term, provided no summary proceeding can be commenced until the expiration of 120 days from the service of such notice, accompanied by a form prescribed by the DHCR advising the tenant of the penalties set forth in section 2524.4(b) of this Part for failure to use the housing accommodation for the charitable or educational purposes for which recovery is sought.

(d) All notices served pursuant to subdivision (c) of this section shall be in lieu of any notice in any lease or rental agreement providing for a lesser time for termination of tenancy.

(e) All notices served pursuant to section 2524.5(a)(2) of this Part shall state:

(1) that the owner will not renew the tenant's lease because the owner has filed an application pursuant to section 2524.5(a)(2) for permission to recover possession of all of the housing accommodations in the building for the purpose of demolishing them, for which plans and financing have been obtained, or are in the process of being obtained, as stated in the application;

(2) that while the application is pending, the tenant may remain in occupancy;

(3) that the tenant shall not be required to vacate until DHCR has issued a final order approving the application and setting forth the time for vacating, stipends and other relocation conditions; and

(4) that the tenant must be offered a prospective renewal lease if the application is withdrawn or
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Another case

Postby TenantNet » Thu Mar 08, 2012 10:41 am

1234 Broadway LLC, Petitioner,
v
Jing Yong Xu et al., Respondents.


Civil Court of the City of New York, New York County, November 4, 2005

APPEARANCES OF COUNSEL

Santo Galino, New York City, for petitioner. Steven T. Gee, New York City, for Jing Yong Xu, respondent.


OPINION OF THE COURT
Joseph E. Capella, J.

The respondent is a permanent hotel tenant whose apartment is subject to the Rent Stabilization Code (RSC). The parties' initial one-year lease expired December 31, 2002, and there have been no lease renewals. The petitioner alleges in its "30 Day Notice of Termination" that the respondent does not occupy the subject hotel apartment as his primary residence. By notice of motion dated August 3, 2005, the petitioner seeks both discovery and use and occupancy (u&o). In opposition, the respondent cross-moves for summary judgment and dismissal due to the petitioner's alleged failure to serve a termination notice (also known as Golub notice) at least 90 and not more than 150 days prior to the expiration of the lease term.

A permanent hotel tenant is an individual who has continuously resided in the same hotel accommodation as his/her primary residence for a period of at least six months. (RSC [9 NYCRR] § 2520.6 [j].) Despite this classification, an owner may commence a proceeding to recover possession upon expiration of the existing lease term, if any, where the hotel accommodation is not occupied by the tenant as his/her primary residence (§ 2524.4 [c]), or where the apartment is sought for the owner's use (§ 2524.4 [a]). An owner must first give the tenant 30 days' notice of intent to commence a nonprimary residence proceeding. (§ 2524.4 [c].) The 30-day notice may be combined with the notice requirement of section 2524.2 (c) (2), which calls for service of a Golub notice "at least 90 and not more than 150 days prior to the expiration of the lease term." (Emphasis added.) The purpose of a Golub notice is to apprise the tenant of the owner's intent not to renew the lease and the specific reason (i.e., owner use or nonprimary) for same. (Scherer, Residential Landlord-Tenant Law in New York § 8:280 [2005].) As already noted, however, in the instant proceeding there is no current renewal lease to delineate the exact expiration date of the tenancy. Although a rent-stabilized tenant is typically entitled to a renewal lease at the expiration of the lease term (§ 2522.5 [b]), this does not appear to be true for a [*2]permanent hotel tenant. According to section 2522.5 (a) (2), a hotel occupant who obtains "a lease becomes a permanent tenant but the lease need not be renewed." (Emphasis added.) The aforementioned nonrenewal language is further supported by the fact that hotel tenants are specifically excluded from section 2522.5 (b) of the RSC, which is the section that addresses renewal leases. Despite the fact that the parties herein at one time had a written lease agreement, there is currently no written renewal lease, nor does it appear that the petitioner was obligated to provide the respondent with same. Under these facts it would appear that requiring the petitioner to serve a Golub notice where there is no written renewal lease with a concrete expiration date for the tenancy (§ 2524.2 [c] [2]) is impractical.

A comparison of the statutory requirements for a Golub notice in a nonprimary residence proceeding versus one for owner use appears to indicate a legislative intent of not requiring said notice in a nonprimary proceeding where there is no current lease. For instance, where a landlord seeks to commence an owner use holdover proceeding against a permanent hotel tenant, service of a Golub notice must be made at least 90 but not more than 150 days prior to the expiration of the lease term, or where there is no lease, at least 90 but not more than 150 days prior to commencement. (§ 2524.2 [c] [3].) In a nonprimary residence holdover proceeding, however, the RSC only requires service of a Golub notice "at least 90 and not more than 150 days prior to the expiration of the lease term" (§ 2524.2 [c] [2]), and unlike the owner use case, it does not require and/or allow for service upon a "hotel . . . tenant without a lease, at least 90 and not more than 150 days prior to the commencement of a court proceeding." (§ 2524.2 [c] [3].) If in fact a permanent hotel tenant is not entitled to a renewal lease, and the lack of one essentially creates a permanent month-to-month tenancy (Cambridge Dev., LLC v McCarthy, 2003 NY Slip Op 51433[U] [Civ Ct, Hous Part, NY County 2003]), then why require a Golub notice in an owner use case and not one for nonprimary residence. Although it is unclear from the RSC whether this omission was intentional or an oversight, these sections of the RSC (i.e., §§ 2524.4, 2524.2) were last amended in 2000, and there has been at least one known published decision which dispensed with the need for a Golub notice. (Cambridge Dev., LLC v McCarthy, 2003 NY Slip Op 51433[U], supra.) Moreover, the failure of the RSC to require and/or allow for service of a Golub notice upon a hotel tenant without a lease, at least 90 and not more than 150 days prior to the commencement of a nonprimary residence holdover proceeding, must be accepted as an indication that its exclusion was intentional. (Pajak v Pajak, 56 NY2d 394 [1982].) Without an exact expiration date that a current written renewal lease would provide, or statutory language permitting service 90 and not more than 150 days prior to the commencement of a court proceeding, this court finds that the petitioner was under no obligation to serve a Golub notice upon the respondent before commencing the instant nonprimary residence holdover proceeding. Therefore, the respondent's cross motion for dismissal is denied.

The court now turns to the petitioner's motion for discovery and u&o. According to the petitioner, the respondent has not been seen at the subject premises, and receives mail, maintains a utility account and is registered to vote at 42-17 Gleane Street, Elmhurst, New York. Given this, and the presumption in favor of discovery in nonprimary residence holdover proceedings, the court is satisfied that the petitioner has demonstrated more than sufficient ample need for discovery. (New York Univ. v Farkas, 121 Misc 2d 643 [Civ Ct, NY County 1983].) However, with regard to that portion of the petitioner's proposed notice to produce which seeks [*3]rent bills, leases and property records for any residence (notice of motion, exhibit B, ¶ 39), the respondent may exclude those rent bills, leases and records that pertain to the subject premises, which the petitioner should already have. The petitioner's proposed notice to produce also seeks "[a]ny documents not requested above that [re]spondent intends to offer into evidence at a trial on this matter." (Notice of motion, exhibit B, ¶ 51.) This request does not sufficiently specify the items sought with reasonable particularity, and as the burden of specificity is on the petitioner (Mendelowitz v Xerox Corp., 169 AD2d 300 [1st Dept 1991]), said request is stricken. If the petitioner lacks knowledge of the existence of specific documents, then it should make use of a deposition and/or related procedures as provided for in the CPLR so as to ascertain the existence of such documents in order that they may be designated with specificity in a notice to produce. (City of New York v Friedberg & Assoc., 62 AD2d 407 [1st Dept 1978].) The monthly u&o is set at the last legal rental amount, and the respondent is directed to pay without prejudice all unpaid u&o which may have accrued from the commencement of this proceeding within five days after service of a copy of this order with notice of entry. The respondent is further directed to pay without prejudice the ongoing monthly u&o on or before the tenth day of each month during the pendency of this proceeding. Based on the aforementioned, the petitioner's motion for discovery[FN*] and u&o is granted, the respondent's cross motion is denied, and the proceeding is marked off the calendar pending discovery.

Footnotes


Footnote *: The account number(s), dollar amount(s) and Social Security number(s) appearing on any bank, credit card or similar statements may be redacted.
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A good Appellate Division (1st Dept) decision

Postby TenantNet » Wed Oct 03, 2012 2:55 am

A good Appellate Division (1st Dept) decision on Non-Primary Residence matters is at http://tenant.net/phpBB2/viewtopic.php?p=48097
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Re: A Primer on Non-Primary Residence Cases

Postby TenantNet » Wed Mar 18, 2015 12:14 pm

ASK SAM: CAN I BECOME A SNOWBIRD AND STILL KEEP MY RENT-STABILIZED APARTMENT?
3/18/15 - 9:59 AM
http://www.brickunderground.com/blog/20 ... _snowbirds

holycalamity
Want to avoid this without getting evicted? Read on.

Dear Sam: After these brutal few months, I never want to spend another winter in the city. Can I keep my rent-stabilized apartment if I spend my winters somewhere warmer?

Yes, you can spend your winters in Florida without getting kicked out of your rent-stabilized (or rent-controlled) apartment, says Sam Himmelstein, a lawyer who represents residential and commercial tenants and tenant associations. You might even be able to sublet while you're gone, if you go about things the right way.

But be careful how long you stay down there: you need to spend more than half of the year actually living in your New York apartment, or your landlord while be within their rights to kick you out on the grounds that the place is no longer your "primary residence." (As it happens, this is the reason Jimmy "The Rent Is Too Damn High" McMillan's landlord gives for their attempts to boot him from his $872-a-month East Village rental.)

There are a few exceptions: you can spend less than six months of the year living in the apartment if you've been absent for medical reasons; are out of town caring for a sick relative; have a job that requires frequent travel (e.g. an "itinerant profession") and don't have a full-time residence elsewhere; are away serving in the military; are sent to prison for a short and definite term; or are temporarily going to school out of town. (Keep in mind that accepting a full-time job out of state doesn't count as an "itinerant profession.")

But what if you play by the rules and your landlord still tries to bring a non-primary residence case against you? "Physical presence is the most important thing," says Himmelstein. "The courts will want to figure out where you sleep, where you eat your meals." Meaning that while things like tax documents and your voter registration can come into play—if you've filed out of state in hopes of saving money, that can be used against you—the key will be proving that you really do spend the majority of your time living in your apartment. "If you booked a flight to Florida on October 1st, and there's not return flight until May 31st, where's the record that shows you're a New York resident," Himmelstein asks.

And make no mistake, your flight records will be a factor here. Landlords have the right to "pre-trial discovery" in non-primary residence cases, and your entire digital footprint will be up for scrutiny. "That means every credit card and bank statement, flight details, tax returns, voter registration, EZ pass bills, everything," says Himmelstein. "I tell clients to get all those documents together right away—even your appointment book or calendar is fair game."

One other detail to keep in mind: you'll most likely have to sit for an under-oath deposition before your trial, and your landlord's lawyer can ask you questions about all the documents you've handed over, and where you've been living. When this happens, it's crucial to have your facts straight. "They get a sneak preview of what your testimony is going to be, and if you don't stick to your story, that can be used against you," says Himmelstein.

Of course, for market-rate residents, if you keep sending in those rent checks every month, you can stay on your Miami getaway as long as you like, unless the lease has a requirement that the apartment be your primary residence—a rare requirement for most landlords.
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Kalikow Family Partnership, LP v. Seidemann, 2013-1814 K C

Postby TenantNet » Thu Jul 23, 2015 11:52 am

July 23, 2015

Citation
Kalikow Family Partnership, LP v. Seidemann, 2013-1814 K C, NYLJ 1202732756210, at (App. Tm., 2nd, Decided July 14, 2015)

CASENAME

Kalikow Family Partnership, LP, Respondent v. David Seidemann, Appellant, -and- "John Doe" and "Jane Doe," Undertenants

2013-1814 K C

Before: Weston, J.P., Aliotta and Elliot, JJ.

Decided: July 14, 2015

DECIDED

Appeal by tenant from a final judgment of the Civil Court of the City of New York, Kings County (Kevin C. McClanahan, J.), entered June 16, 2013. The final judgment, after a nonjury trial, awarded landlord possession in a holdover summary proceeding.

PER CURIAM

ORDERED that the final judgment is affirmed, without costs.

Landlord commenced this holdover proceeding to recover possession of tenant's rent-stabilized Brooklyn apartment, pursuant to Rent Stabilization Code (9 NYCRR) §2524.4 (c), on the ground that tenant did not occupy the apartment as his primary residence. Rent Stabilization Code (9 NYCRR) §2520.6 (u) provides that a court may consider several factors when determining whether a premises is being occupied as a primary residence, but "no single factor shall be solely determinative" (see Katz Park Ave. Corp. v. Jagger, 11 NY3d 314, 317 [2008]; Glenbriar Co. v. Lipsman, 5 NY3d 388, 392-393 [2005]).

At a nonjury trial, landlord presented testimony that tenant, a professor at Brooklyn College, had first leased his Brooklyn apartment in 1975. Prior to tenant's marriage in 1993, he had purchased a house in Connecticut, which is where his wife and children primarily reside, and where tenant is registered to vote. Tenant teaches classes at Brooklyn College two to three days per week and, otherwise, spends his time in Connecticut. He usually goes to Connecticut on Fridays and returns to Brooklyn on either Tuesday or Wednesday. Tenant's employment duties include teaching, which constitutes 25 percent of his duties, research, which constitutes 60 percent (tenant performed all of his research in Connecticut for more than 30 years), and other things, such as committee work, which constitutes 15 percent. By virtue of the foregoing proof, landlord demonstrated, by a preponderance of the evidence, that tenant did not use the subject premises as his primary residence (see e.g. Glenbriar Co. v. Lipsman, 5 NY3d at 392).

It was, therefore, incumbent upon tenant to rebut landlord's showing by demonstrating "a substantial, physical nexus to the apartment" (Glenbriar Co. v. Lipsman, 5 NY3d at 393; see also Katz Park Ave. Corp. v. Jagger, 11 NY3d at 317; Emel Realty Corp. v. Carey, 288 AD2d 163 [2001]). Tenant testified that he spent 20 to 25 hours per week doing research in Connecticut1 and, on the average, spent between 120 and 160 days in Brooklyn each year. He did not have a driver's license, did his banking in Brooklyn, and all of his healthcare providers were located in Brooklyn.

Following the trial, the Civil Court awarded possession to landlord, finding that tenant did not have a substantial physical nexus to the Brooklyn apartment. Upon a review of the record, we find that the conclusions of the court could be reached under a fair interpretation of the evidence (see 409-411 Sixth St., LLC v. Mogi, 22 NY3d 875, 876-877 [2013]; Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 NY2d 492, 499 [1983]; Claridge Gardens v. Menotti, 160 AD2d 544, 545 [1990]).

Consequently, we find no basis to disturb the court's determination.

We note that tenant did not preserve for review his contention that the Civil Court demonstrated bias against him which deprived him of a fair trial (see Tonkin v. Lofthouse, 34 AD3d 1309 [2006]; Camperlengo v. Lenox Hill Hosp., 239 AD2d 150 [1997]). In any event, the record establishes that "the actions of the trial court were, in the main, directed towards focusing the proceedings on the relevant issues and clarifying facts material to the case in order to expedite the trial…. [O]verall the conduct complained of was not so egregious as to deprive the defendant of a fair trial" Sheinkerman v. 3111 Ocean Parkway Assoc., 259 AD2d 480 [1999]; see also Tonkin v. Lofthouse, 34 AD3d 1309). Tenant's remaining contentions are similarly without merit.

Accordingly, the final judgment is affirmed.

Weston, J.P., Aliotta and Elliot, JJ., concur.
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Re: A Primer on Non-Primary Residence Cases

Postby TenantNet » Tue Sep 20, 2016 7:33 pm

2015-2015-ny-slip-op-31238-u.pdf
(2.73 MiB) Downloaded 58 times


Civil Court of the City of New York, New York County
Docket Number: 65389/2012

2015 NY Slip Op 31238(U)
26 BOND STREET MANAGEMENT LLC, Petitioner/Landlord,
v.
RUTH BAUMANN, JOSHUA EICHENBAUM, et al., Respondents/Tenants.

Docket No. 65389/2012.
Civil Court of the City of New York, New York County.

July 20, 2015.
DECISION/ORDER

JACK STOLLER, Judge.

The Decision and Order on this Motion are as follows.

26 Bond Street Management LLC, the petitioner in this proceeding ("Petitioner"), commenced this holdover proceeding against Ruth Baumann ("Respondent"), a respondent in this proceeding, and Joshua Eichenbaum ("Co-Respondent"), another respondent in this proceeding (collectively, "Respondents")[1] seeking possession of 26 Bond Street, Apt. 1F, New York, New York ("the subject premises") on the basis that Respondent is a tenant of the subject premises pursuant to the Loft Law and that Respondent does not maintain the subject premises as her primary residence. Respondents interposed an answer which, inter alia, denied the allegation that Respondent has not been maintaining the subject premises as her primary residence. Discovery ensued. Petitioner now moves for summary judgment in its favor. Respondents cross-move for summary judgment in their favor. The Court consolidates both motions for resolution herein.

Despite the fact that summary resolution of issues of primary residence are ordinarily not favored, Extell Belnord LLC v. Uppman, 113 A.D.3d 1, 12 (1st Dept. 2013), both parties insisted at oral argument of this motion that there were no disputes of fact and, indeed, the record on the motion practice does not reveal any material disputes of fact. In sum, the record shows that Respondent spends approximately twelve hours a day, five days a week, and fifty weeks a year at the subject premises; that Co-Respondent, who is Respondent's son, lives in the subject premises; that over the past five years, Respondent has rarely slept in the subject premises, but rather at her boyfriend's apartment elsewhere in Manhattan ("the boyfriend's apartment"), and that Respondent operates her business out of the subject premises.

Respondent has lived at the subject premises since 1978. Co-Respondent was born in 1984 and continues to live in the subject premises. There is no dispute that documentation of the sort associated with a tenant's primary residence — Respondent's driver's license, tax returns, voter registration, mailings from a house of worship Respondent sometimes has attended, utility bills, cell phone bills, credit card statements, various insurance mailings — places Respondent at the subject premises.[2]

Respondent is self-employed in graphic design, particularly having to do with the branding of products. Respondent's business is located at the subject premises. Respondent works at the subject premises ten to twelve hours a day during the workweek, although she frequently has to meet clients throughout the Tri-State area during daytime hours.

Respondent started a relationship with her boyfriend in 2008. The boyfriend's apartment is located in a residential cooperative and he owns the shares appurtenant to the proprietary lease for the boyfriend's apartment. Respondent's name is not connected with any documents pertaining to the boyfriend's apartment.

Respondent sleeps at the boyfriend's apartment on a near-exclusive basis. At a deposition in July of 2014, Respondent identified only fourteen days out of four-and-half years from January of 2010 through the date of a deposition that Respondent slept in the subject premises, although it is possible that there were more.[3] Respondent averred in an affidavit in support of her motion that a reason that she and her boyfriend spent so many of their nights in New York City at the boyfriend's apartment as opposed to the subject premises was because Co-Respondent, her son, lives at the subject premises and they have more privacy at the boyfriend's apartment, as no one else lives at the boyfriend's apartment.

Respondent has drawers in one dresser and a half of a closet at the boyfriend's apartment, as well as a toothbrush, shampoo, a bicycle, and some clothing items there. Respondent's routine during the workweek is to wake up at the boyfriend's apartment, sometimes shower and exercise at the boyfriend's apartment, but sometimes shower and exercise at the subject premises, head to the subject premises by about 7 a.m., sometimes prepare and eat breakfast at the subject premises, feed and tend to her cats, work, prepare and eat lunch at the subject premises, and head back to the boyfriend's apartment in the evening with an overnight bag by about 8 to 10 p.m., coordinating to meet him there by phone or email.

Respondent keeps the bulk of her clothes, jewelry, possessions, furniture, and toiletries in the subject premises, including cameras, as photography is a hobby of hers. Respondent does not co-mingle funds with her boyfriend. He is not in her will. Respondent's daughter, who lives in elsewhere in Manhattan, is Respondent's health care proxy. While Respondent has a key to the boyfriend's apartment and the doorman at his building knows her, Respondent's boyfriend does not have a key to the subject premises.

About three weekends a month, Respondent and her boyfriend go to Connecticut where he owns a condominium, where they engage in various sporting activities and hobbies. Respondent also has occasion visits her parents in New Paltz, New York on weekends.

Respondent averred in an affidavit in support of her motion that she socializes with other residents of the building in which the subject premises is located ("the Building") including one ninety-two-year-old neighbor for whom she is an attorney-in-fact.

Petitioner bears the burden of establishing that Respondent maintains a primary residence in a place other than the subject premises. Sharp v. Melendez, 139 A.D.2d 262, 264 (1st Dept. 1988), leave to appeal denied, 73 N.Y.2d 707 (1989). Obviously, the only prospect for any other primary residence of Respondent is the boyfriend's apartment. However, not a single document links Respondent to the boyfriend's apartment. Respondent has no discernible rights of possession of the boyfriend's apartment. Petitioner does not dispute that Respondent spends twelve hours a day and two hundred fifty days a year at the subject premises.

Rent-stabilized tenants who spend less time in their rent-stabilized apartments with much stronger ties to alternate addresses further away from New York City nevertheless maintain their New York City rent-stabilized apartments as their primary residences. See, e.g., Glenbriar Co. v. Lipsman, 11 A.D.3d 352, 353-354 (1st Dept. 2004), aff'd, 5 N.Y.3d 388 (2005) (a New York apartment was still a tenant's primary residence when she spent six months out of the year in Florida); 310 E. 23rd LLC v. Colvin, 41 A.D.3d 149, 149-150 (1st Dept. 2007) (a house a tenant owns in Upstate New York used as a home address in certain tax-related documents is merely the tenant's second residence that the tenant only used on weekends, holidays and vacations, not her primary residence); Four Winds Assocs. v. Rachlin, 248 A.D.2d 352, 353 (2nd Dept. 1998) (a tenant who owns a condominium in Florida, registered her automobile there, and had a restricted Florida driver's license still maintained her primary residence at her rent-stabilized apartment in New York City when she voted in New York, paid New York income taxes, possessed a New York State driver's license, received ongoing care from medical professionals in New York, and kept her clothing in the New York apartment); RSP 86 Prop. LLC v. Sylvester, 47 Misc.3d 137(A) (App. Term 1st Dept. 2015) (a rent-stabilized tenant who maintains seasonal homes in the Hamptons and in Florida does not vitiate a substantial physical nexus to his rent-stabilized apartment where the tenant's most important documents, such as his tax returns, driver's license, voter registration, and bank and credit card statements place the tenant at the rent-stabilized apartment); Ninth Ave. Realty LLC v. McKay, 29 Misc.3d 136(A) (App. Term 1st Dept. 2010) (the ownership of and weekend use of and vacation use of a house in Orange County, New York does not mean that rent-stabilized tenants are not using their rent-stabilized apartment as their primary residence when their rent-stabilized apartment is fully-furnished, they spend well in excess of one hundred eighty-three days at the rent-stabilized apartment, and where they maintain full-time jobs in Manhattan); ST Owner LP v. Ward, 21 Misc.3d 133(A) (App. Term 1st Dept. 2008) (even when a rent-stabilized tenant owned a house in New Jersey and registered her car there, the rent-stabilized premises in New York was still her primary residence when she only used the New Jersey house on the weekends).

The Court struggles to harmonize this authority with the proposition Petitioner asks this Court to endorse, that Respondent does not maintain the subject premises her primary residence when she sleeps at an apartment an intra-borough subway ride away from the subject premises as an incidence of a romantic relationship, continues to connect all of her documentation to the subject premises, and spends more days at the subject premises than tenants who own vacation homes in Florida and the Hamptons. The stray possessions Respondent has at the boyfriend's apartment cannot come close to the kind of furnishing that a second home logically requires.

Petitioner argues that the subject premises is not Respondent's primary residence because she uses the subject premises solely for business purposes, which is not permitted. Ter-Arutunian v. Stahl Associates Company, N.Y.L.J. Jan. 23, 1987 at 13:1 (S. Ct. N.Y. Co.). However, Respondent maintains and feeds her cats at the subject premises, socializes with neighbors in the Building, including one to the point of being his attorney-in-fact, maintains and prepares food at the subject premises, and maintains the great bulk of her personal property at the subject premises, conduct which has nothing to do with Respondent's business.

Moreover, as the subject premises is subject to the Loft Law, at least some use of the subject premises for commercial purposes is permissible. See Anthony v. New York City Loft Bd., 122 A.D.2d 725, 727 (1st Dept. 1986) (a dwelling covered by the Loft Law must be converted "at least in part" into a residential unit). Had Respondent operated her business in the subject premises and also slept in the subject premises with any regularity, Petitioner's cause of action would be wholly devoid of merit. Accordingly, the outcome of this proceeding turns on the extent to which Respondent's failure to sleep in the subject premises for a protracted period of time implicates it as her primary residence.

That Petitioner's case boils down to this issue inures to Respondent's benefit, as no single factor shall be solely determinative of a primary residence controversy. Katz Park Ave. Corp. v. Jagger, 11 N.Y.3d 314, 317 (2008), Glenbriar Co., supra, 5 N.Y.3d at 392-393. Be that as it may, a tenant who prefers to sleep at a friend's apartment during a refurbishment of the tenant's rent-stabilized apartment maintained the apartment as his primary residence even when the tenant himself prolonged the refurbishment. Ascot Realty, LLC v. Richstone, 10 A.D.3d 513, 513-514 (1st Dept. 2004), leave to appeal dismissed, 4 N.Y.3d 842, 843 (2005). A tenant with two rent-stabilized apartments that are used as one does not relinquish the one she does not sleep in her primary residence when she takes meals in that apartment, spends a substantial amount of time in that apartment, works on a novel in that apartment, and engages in craft and hobby projects in that apartment. 138-140 Vil. Owners Corp. v. Dillard, 18 Misc.3d 1111(A) (Civ. Ct. N.Y. Co. 2007).

More significantly, even a married rent-stabilized tenant does not relinquish her apartment as her primary residence when she sleeps every night with her spouse in his (separate) apartment, as she otherwise uses her apartment as a home, 224 East 18th Street Assoc. v. Sijacki, 138 Misc.2d 494, 499-500 (Civ. Ct. N.Y. Co. 1987), aff'd, 143 Misc.2d 565 (App. Term 1st Dept. 1989), a proposition consistent with the law that two spouses may have two separate primary residences. Glenbriar Co., supra, 11 A.D.3d at 353-354, Rose Associates v. State Div. of Housing & Community Renewal, Office of Rent Admin., 121 A.D.2d 185, 187 (1st Dept. 1986), 60 W. 57 Realty, Inc. v. Durante, 17 Misc.3d 71, 72 (App. Term 1st Dept. 2007). If even a married couple can maintain two separate primary residences, surely Respondent and her boyfriend, who are not married and therefore may break up without having to litigate against one another, may have two separate primary residences. Consenting adults are allowed to have romantic relationships with each other at a speed of their choosing. They may be close enough to spend every night together but independent enough from one another to maintain separate residences. And they are free to choose to spend their nights together in the residence where they have more privacy than the residence where an adult child of one of them lives.

Accordingly, the Court finds that Petitioner has not met its burden of proving that Respondent does not maintain the subject premises as her primary residence. The Court denies Petitioner's motion for summary judgment and grants Respondent's motion for summary judgment and dismisses the petition.

This constitutes the decision and order of this Court.

[1] Another respondent, Naomi Eichenbaum ("Respondent's daughter"), has withdrawn her answer and vacated the subject premises.

[2] Respondent testified to this effect at a deposition and, in a reply affirmation, Petitioner's attorney averred that Respondent "carefully constructed a paper trail" in an effort to link her with the subject premises.

[3] Respondent testified that for one six-month period, she slept at the boyfriend's apartment a "majority" of the time, although without providing as specific a number as she did for other six-month periods.
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