Opinion
83437/2016
10-03-2019
217 EAST 88TH STREET & 212-234 EAST 89TH STREET LLC c/o Sol Goldman Investments LLC, Petitioners, v. Michael LEVINE, et al., Respondents.
For Petitioner: Judith M. Brener, by Jeffrey Goldman and Ivy Alexander For Respondent: Mobilization For Justice Legal Services, by Justin Lamort and Cassandra Charles
For Petitioner: Judith M. Brener, by Jeffrey Goldman and Ivy Alexander
For Respondent: Mobilization For Justice Legal Services, by Justin Lamort and Cassandra Charles
Jack Stoller, J.
217 East 88th Street & 212-234 East 89th Street LLC c/o Sol Goldman Investments LLC, the petitioner in this proceeding ("Petitioner"), commenced this holdover proceeding against Michael Levine ("Respondent"), a respondent in this proceeding, and Robin Perry ("Co-Respondent"), another respondent in this proceeding (collectively, "Respondents"), seeking a judgment of possession of 222 East 88th Street, Apt. 6, New York, New York ("the subject premises") on the ground that Respondent is a rent-stabilized tenant of the subject premises, that Respondent does not maintain the subject premises as his primary residence, and that Co-Respondent's occupancy is derivative of Respondent. Co-Respondent did not appear. The Court held a trial of this matter against Respondent contemporaneously with an inquest against Co-Respondent on September 11, 2019 and September 12, 2019.
The trial
Petitioner proved that it is the proper party to commence this proceeding; that there is a landlord/tenant relationship between Petitioner and Respondent; that Respondent is a tenant covered by the Rent Stabilization Law; that Respondent's most recent lease expired on November 30, 2016; and that Petitioner properly and timely served Respondent with a notice declining to renew Respondent's lease pursuant to 9 N.Y.C.R.R. § 2524.2(c)(2).
Petitioner introduced evidence that a private investigator called Respondent on July 27, 2016 at 2:00 p.m. and had a phone conversation with Respondent in which Respondent stated that Co-Respondent lived in the subject premises.
Petitioner introduced evidence that another private investigator had installed a motion-activated surveillance camera outside of the subject premises to record, inter alia , when Respondent entered and exited the subject premises, and records memorializing dates and times of those occurrences ("the surveillance records").
The surveillance records showed that, in December of 2015, Respondent had a presence in the subject premises 12 days and spent the night there 6 days; that, in January of 2016, Respondent had a presence in the subject premises 17 days and spent the night there 8 times; that, in February of 2016, Respondent had a presence in the subject premises 19 days and spent the night there 10 times; that, in March of 2016, Respondent had a presence in the subject premises 17 days and spent the night there 8 times; that, in April of 2016, Respondent had a presence in the subject premises 14 days and spent the night there 7 times; that, in May of 2016, Respondent had a presence in the subject premises 10 days and spent the night there 5 times; that, in June of 2016, Respondent had a presence in the subject premises 14 days and spent the night there 6 times; that, in July of 2016, Respondent had a presence in the subject premises 16 days and spent the night there 9 times; that, in August of 2016, Respondent had a presence in the subject premises 11 days and spent the night there 6 times; that, in September of 2016, Respondent had a presence in the subject premises 17 days and spent the night there 8 times; that, in October of 2016, Respondent had a presence in the subject premises 23 days and spent the night there 12 times; and that, in November of 2016, Respondent had a presence in the subject premises 9 days and spent the night there 2 times.
Petitioner introduced into evidence proof that the phone number connected with Respondent's mobile phone appeared on a bill sent to Richard Ottens ("Respondent's partner") at 201 East 15th Street, New York, New York ("the other address") from December of 2014 through September of 2016. Another phone number also appears on the bill.
Respondent testified that he is unemployed; that his source of income is Supplemental Security Income ("SSI"), which he receives because of a physical disability; that he moved into the subject premises in April of 1991; that he first obtained a lease to the subject premises in September of 1995; that he sleeps in the subject premises fourteen to sixteen nights per month; that his doctor is located near Union Square in Manhattan; that he is in a relationship with Respondent's partner; that Co-Respondent has been Respondent's roommate since May of 2013, the latest in a series of roommates Respondent has had to help him with expenses; that the subject premises has one bedroom; that he sleeps in the bedroom and Co-Respondent sleeps in a larger front room; that he has a dresser, a chest of drawers, a captain's bed, a mirror, a nightstand, a kitchen table, kitchen appliances, and cookware in the subject premises; that Co-Respondent contributes to the rent monthly; that they split the cost of the utilities; that his regular schedule involves him going to the other address to be with Respondent's partner on Sundays until Monday afternoons; that he then returns to the subject premises, where he stays through 12 noon on Tuesdays; that he then returns to the other address; that he returns to the subject premises on Wednesdays; that he leaves the subject premises on Thursdays; that he goes back to the subject premises on Friday afternoons, where he stays through most of the day on Saturdays; that he and Respondent's partner are not married; that he does not have children; that he and Respondent's partner met in 1998; that they started dating around 1999; that Respondent's partner doesn't spent time at the subject premises; that Respondent's partner travels to New Jersey for work five days a week; that he took care of Respondent's partner's dog when Respondent's partner traveled; that he does not live with Respondent's partner because he doesn't want to; that he's not good at living with someone; that he doesn't believe in marriage or children for himself; that his relationship with Respondent's partner would not have lasted this long if they lived together; that he keeps a pair of pants and a sweatshirt at the other address; that most of his clothes are in the subject premises; that he visits his family in Syracuse on the Easter/Passover holiday, at some point in the summer, on Thanksgiving, and on Christmas; that he is registered to vote at the subject premises; and that he needs to respond to mailings from the Social Security Administration ("SSA") or he could lose his source of income.
Respondent introduced into evidence his monthly bank statements from December of 2014 through December of 2016, all addressed to him at the subject premises; cable bills from December of 2014 through December of 2016, all addressed to him at the subject premises; Con Edison bills from December of 2014 through December of 2016, all addressed to him at the subject premises; state and federal tax returns Respondent filed listing the subject premises as his address for 2014, 2015, and 2016; mailings from SSA regarding his SSI benefit to Respondent at the subject premises, dated October 28, 2014, November 29, 2014, and January 15, 2016; a letter from the New York City Human Resources Administration ("HRA") about his Supplemental Nutrition Assistance Payment ("SNAP") benefits sent to him at the subject premises; records from the New York City Board of Elections showing the subject premises as Respondent's address and that he voted at the polling place for that address in November of 2016; and Respondent's driver's license, which shows the subject premises as Respondent's address.
Respondent testified on cross-examination that he has one television in the subject premises, in his room; that he does not remember if he declared Co-Respondent's rent as income on his tax return; that HRA never sent anyone to visit the subject premises to verify his residence there; that he shops at a grocery store on 14th Street in Manhattan; that he was there seven times in December of 2014 and January of 2015; that he never had mail forwarded anywhere; and that he is on a mobile phone plan with Respondent's partner.
The tax returns in evidence are redacted.
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Petitioner did not put on a rebuttal case. Petitioner asked the Court to draw an adverse inference because of Respondent's non-production of Respondent's partner and Co-Respondent at trial.
Discussion
An address that a tenant uses for various personal purposes is probative of a tenant's primary residence. Second 82nd Corp. v. Veiders , 146 AD3d 696 (1st Dept. 2017), 542 E. 14th St. LLC v. Lee , 66 AD3d 18, 22 (1st Dept. 2009). Respondent uses the subject premises for a variety of documents as such, including for his tax returns, Glenbriar Co. v. Lipsman , 5 NY3d 388, 392-393 (2005), Second 82nd Corp. , supra , 146 AD3d at 696, 542 E. 14th St. LLC , supra , 66 AD3d at 22-23, 317 Magnone LLC v. Gumina , 55 Misc 3d 142(A)(App. Term 1st Dept. 2017), 422 E. 9th LLC v. Patton , 29 Misc 3d 137(A)(App. Term 1st Dept. 2010), 300 W. 106th St. Corp. v. Rosenthal , 9 Misc 3d 1101(A)(Civ. Ct. NY Co. 2004), aff'd , 10 Misc 3d 137(A)(App. Term 1st Dept. 2005), Boulder Apartments, LLC v. Raymond , 59 Misc 3d 141(A)(App. Term 2nd Dept. 2018), his driver's license, Glenbriar Co. , supra , 5 NY3d at 392-393, 300 East 34th St. Co. v. Habeeb , 248 AD2d 50, 55 (1st Dept. 1997), 317 Magnone LLC , supra , 55 Misc 3d at 142(A), 300 W. 106th St. Corp. , supra , 9 Misc 3d at 1101(A), W.S.L.D.J. & J. Weinreb, A. & M. Reiss v. Martin , N.Y.L.J. Nov, 20, 2002 at 21:1 (App. Term 1st Dept.), his voter registration, Glenbriar Co. , supra , 5 NY3d at 392-393, 422 E. 9th LLC , supra , 29 Misc 3d at 137(A), 300 W. 106th St. Corp. , supra , 9 Misc 3d at 1101(A), Lance Realty Co. v. Fefferma , 5 Misc 3d 134(A)(App. Term 1st Dept. 2004), W.S.L.D.J. & J. Weinreb, A. & M. Reiss , supra , N.Y.L.J. Nov, 20, 2002 at 21:1, Lesser v. Park 65 Realty Corp. , 140 AD2d 169, 174 (1st Dept. 1988), Brg 321 LLC v. Hirschorn , 52 Misc 3d 131(A)(App. Term 1st Dept. 2016), RSP 86 Prop. LLC v. Sylvester , 47 Misc 3d 137(A)(App. Term 1st Dept. 2015), his SSA correspondence, 300 East 34th St. Co. , supra , 248 AD2d at 55, Lesser , supra , 140 AD2d at 174, Brg 321 LLC , supra , 52 Misc 3d at 131(A), RSP 86 Prop. LLC , supra , 47 Misc 3d at 137(A), 422 E. 9th LLC , supra , 29 Misc 3d at 137(A), Hudsoncliff Bldg. Co. v. Houpouridou , 22 Misc 3d 52, 53 (App. Term 1st Dept. 2008) ; Boulder Apartments, LLC , supra , 59 Misc 3d at 141(A), and his bank statements, 300 East 34th St. Co. , supra , 248 AD2d at 55, Lesser , supra , 140 AD2d at 174, Brg 321 LLC , supra , 52 Misc 3d at 131(A), RSP 86 Prop. LLC , supra , 47 Misc 3d at 137(A), Hous. St. Mgmt. Co. v. La Croix , 54 Misc 3d 130(A)(App. Term 1st Dept. 2017), aff'd , 158 AD3d 554 (1st Dept. 2018), 951 LLC v. Carasco , 53 Misc 3d 151(A)(App. Term 1st Dept. 2016), Manhattan Transfer, L.P. v. Quon , 36 Misc 3d 136(A)(App. Term 1st Dept. 2012), 155 W. Assocs. v. Dapper , 2009 NY Slip Op. 32444(U), ¶¶ 27-28 (Civ. Ct. NY Co.).
Whether in the face of this countervailing evidence or not, Petitioner bears the burden of proving that Respondent does not maintain the subject premises as his primary residence. Glenbriar Co. , supra , 5 NY3d at 392-393. The countervailing factors Petitioner relies upon are Respondent's phone bills and the amount of time Respondent spent in the subject premises. Putting a finer point on it, Petitioner argues that the number of nights that Respondent spent in the subject premises implicates the primary residence question. Toward this point, the surveillance records show that, in the year prior to the expiration of Respondent's most recent lease, Respondent had a presence in the subject premises on 179 days but only stayed overnight there for 90 days.
Be that as it may, if a tenant otherwise maintains a presence at an apartment, the apartment remains the tenant's primary residence even if the tenant does not sleep there. Ascot Realty, LLC v. Richstone , 10 AD3d 513, 513-514 (1st Dept. 2004), leave to appeal dismissed , 4 NY3d 842, 843 (2005) (a tenant who prefers to sleep at a friend's apartment during a refurbishment of the tenant's rent-stabilized apartment that the tenant himself prolonged still maintained the apartment as his primary residence), 138-140 Vil. Owners Corp. v. Dillard , 18 Misc 3d 1111(A)(Civ. Ct. NY Co. 2007) (a tenant with two rent-stabilized apartments that are used as one does not relinquish the apartment she does not sleep in as 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). Cf. Matter of 135 W. 13 LLC v. Stollerman , 151 AD3d 598, 599 (1st Dept. 2017).
Aside from the question of where Respondent spends his nights, one of the factors tending to show whether a tenant maintains a rent-stabilized apartment as a primary residence is whether the tenant occupies the premises for less than 183 days a year. 9 N.Y.C.R.R. § 2520.6(u)(3). As noted above, the surveillance records show Respondent at the subject premises on 179 days in the last year recorded.
No single factor solely determines non-primary residency, 92 Cooper Assoc., LLC v. Roughton-Hester , 165 AD3d 416, 417 (1st Dept. 2018), Zevrone Realty Corp. v. Irving , 63 Misc 3d 141(A)(App. Term 1st Dept. 2019), including occupancy for less than 183 days. Boulder Apartments, LLC , supra , 59 Misc 3d at 141(A), Rego Estates v. Lillian , 1998 NY Misc. LEXIS 771, at *1-2 (App. Term 2nd Dept. 1998), Nicole Assets, Inc. v. Yeargin , 238 N.Y.L.J. 32 (Civ. Ct. NY Co. 2007). Occupancy for 179 days therefore does not compel a per se finding of nonprimary residence, although the Court still weighs occupancy of this quantity against the evidence showing that Respondent uses the subject premises as his primary residence.
The surveillance records roughly corroborate Respondent's testimony that he did not leave the subject premises for months-long blocs of time but, rather, that Respondent regularly returned to the subject premises several times a week. Respondent thus met his burden of proving by a preponderance of the evidence that his relationship with Respondent's partner and the time they spent together at the other address occasioned Respondent's absences from the subject premises. In light of this context, the purposes of the Rent Stabilization Law assist a determination of the appropriate weight to assign the evidence of Respondent's presence at the subject premises for 179 days.
The State Legislature regulated rents in the first instance to protect tenants facing a housing shortage. Rent Stabilization Ass'n v. Higgins , 83 NY2d 156, 164-65 (1993). Rent-stabilized tenants who do not actually live in their apartments only exacerbate the very shortage that precipitated rent regulation. Briar Hill Apartments Co. v. Teperman , 165 AD2d 519, 523 (1st Dept. 1991). See Katz Park Ave. Corp. v. Jagger , 11 NY3d 314, 317 (2008) (primary residency means an ongoing, substantial, physical nexus with the subject premises for "actual living purposes.") Petitioner essentially argues that Respondent does not "actually live" in the subject premises in a situation where Respondent is in a relationship with Respondent's partner, where Respondent accordingly wants to spent nights with Respondent's partner, but where Respondent does not feel comfortable advancing the relationship to the point where Respondent and Respondent's partner live together.
While there may be facetious cliches about New Yorkers making decisions about personal relationships based on their rent regulatory status, the protection of Rent Stabilization does not deprive rent-stabilized tenants of the privilege that all consenting adults enjoy, to date someone at a speed of their choosing. 26 Bond St. Mgmt. LLC v. Baumann , 2015 NY Slip Op. 31238(U)(Civ. Ct. NY Co.). Even spouses who are rent-stabilized tenants may maintain two separate primary residences without dissolving their marriage, Glenbriar Co. , supra , 11 AD3d at 353-354, Rose Associates v. State Div. of Housing & Community Renewal, Office of Rent Admin. , 121 AD2d 185, 187 (1st Dept. 1986), 60 W. 57 Realty, Inc. v. Durante , 17 Misc 3d 71, 72 (App. Term 1st Dept. 2007), even when they spend every night together in just one of the two residences. 224 East 18th Street Assoc. v. Sijacki , 138 Misc 2d 494, 499-500 (Civ. Ct. NY Co. 1987), aff'd , 143 Misc 2d 565 (App. Term 1st Dept. 1989).
One could certainly imagine circumstances according to which a rent-stabilized tenant's personal relationship with someone else could interfere with that tenant's primary residence, and a tenant's absence from a rent-stabilized apartment would contribute to that finding. But this record demonstrates that Respondent had a regular presence in the subject premises and the number of days that Respondent was present in the subject premises, 179, amounts to a rounding error compared to 183 days. Of course, the statute says 183 days, but, as no single factor is dispositive, the number of days a tenant spends in a rent-stabilized apartment is not irrelevant. A tenant who spends 179 days at an apartment presents a different mix of facts than a tenant who, say, spends zero days at an apartment.
The bills for the phone connected with Respondent's phone number go to the other address and are in Respondent's partner's name, a factor militating against a finding that the subject premises is Respondent's primary residence. Cox v. J.D. Realty Assocs. , 217 AD2d 179, 184 (1st Dept. 1995), Lesser , supra , 140 AD2d at 174, 300 W. 106th St. Corp. , supra , 9 Misc 3d at 1101(A). However, Petitioner did not rebut Respondent's testimony that Respondent shares a family phone plan with Respondent's partner, testimony corroborated by the presence of more than one phone number on the bills, thus reducing the probative value of the phone bills as regards the primary residency question, as different phone numbers on a family plan can originate from different addresses.
The probative value of the volume of important documents Respondent connects to the subject premises and the surveillance records showing Respondent's continuous presence at the subject premises, even if for 179 days, thus outweighs the compromised probative value of the phone bills and the number of days of Respondent's presence in the subject premises, as explained above. Petitioner therefore does not prove by a preponderance of the evidence that Respondent has failed to maintain the subject premises as his primary residence. The Court therefore dismisses this proceeding with prejudice through the last date of trial.
The parties are directed to pick up their exhibits within thirty days or they will either be sent to the parties or destroyed at the Court's discretion in compliance with DRP-185.
This constitutes the decision and order of this Court.