Opinion
No. L & T 76946/2010.
10-07-2014
FIFTH AVENUE LLC, Petitioner–Landlord v. Holly WERTHEIMER 20 Fifth Avenue, Apt 6B New York, New York 10011, Respondent–Tenant “John Doe” and “Jane Doe” Respondent–Occupants.
Jeffrey M. Goldman, Esq., New York, for Petitioner. Dawn K. Kelly, Esq., Koehler & Isaacs, LLP, New York, for Respondent. Anna Nechayev, Esq., Brooklyn, Guardian Ad Litem.
Jeffrey M. Goldman, Esq., New York, for Petitioner.
Dawn K. Kelly, Esq., Koehler & Isaacs, LLP, New York, for Respondent.
Anna Nechayev, Esq., Brooklyn, Guardian Ad Litem.
SABRINA B. KRAUS, J.
BACKGROUND
The underlying summary holdover proceeding was commenced by 20 FIFTH AVENUE LLC(Petitioner) against HOLLY WERTHEIMER(Respondent), the rent-stabilized tenant of record based on the allegation that Respondent has failed to maintain the Subject Premises as her primary residence. Both parties are represented by counsel and a guardian ad litem (GAL) has been appointed for Respondent.
The pleadings asserted that Respondent has been living in the same building as the Subject Premises, but that she lives in Apartment 8G with Matthew Danoski (Danoski). Respondent has filed an answer wherein she asserts that any absence from the Subject Premises is a result of her suffering from severe agoraphobia.
PROCEDURAL HISTORY
Petitioner issued a Notice of Non–Renewal dated April 23, 2010, advising Respondent that her last lease, which expired July 31, 2010, would not be renewed based on her alleged non-primary residence. The Notice asserted that based on a private investigation and observations of building personnel, Respondent rarely occupied the Subject Premises, and resided in apartment 8G with Danoski. The Notice asserted Respondent had occupied the Subject Premises for less than 183 days per year. The petition is dated August 2, 2010, and the proceeding was originally returnable September 2, 2010.
Respondent appeared by counsel on the initial return date. On October 5, 2010, the parties entered a stipulation wherein Respondent consented to jurisdiction and agreed to serve an answer on or before October 21, 2010.
Respondent filed a verified answer on or about October 22, 2010. The answer asserts: a general denial; that the Subject Premises is Respondent's only residence; that any absence from the Subject Premises by Respondent was due to a medical condition, specifically severe agoraphobia ; that Respondent never abandoned or vacated the Subject Premises; that Petitioner has waived its right to maintain this proceeding, because Petitioner knew Respondent was staying with Danoski since 2005 and took no action in regard to this fact; and that Respondent qualifies as a person with disabilities under the Americans with Disabilities Act of 1990, and Petitioner is required to make a reasonable accommodation for Respondent.
On January 18, 2011, Petitioner moved for discovery seeking an order directing Respondent to produce certain documents and appear for a deposition. Respondent consented to that part of the motion seeking production of documents pursuant to a stipulation entered between the parties on February 28, 2011. On April 5, 2011, Respondent cross-moved for a protective order. The motions were consolidated for disposition and granted per court order (Kaplan, J) on April 5, 2011, which provided that Respondent should answer interrogatories and that Petitioner could renew its motion for an EBT if needed after the interrogatories “... in a manner tailored to accommodate respondent to the extent possible.” The proceeding was marked off calendar pending completion of discovery.
On June 18, 2012, Petitioner moved for an order restoring the proceeding to the calendar, an order of preclusion pursuant to CPLR 3126 based on Respondent's failure to produce medical records, and setting a trial date. The motion was settled by the parties' stipulation which provided that Respondent would produce additional documentation and refrain from calling two witnesses at trial, one of whom was represented to be deceased. The proceeding was adjourned to August 2, 2012 for trial. Respondent reserved the right to move for the appointment of a Guardian Ad Litem.
On August 2, 2012, Respondent moved for an order appointing a Guardian Ad Litem for Respondent and related relief. The motion was granted by the court (Elsner, J) on the return date on consent. The court order reopened discovery to allow Respondent to supplement responses to interrogatories and documents previously provided, and the proceeding was adjourned to September 19, 2012 for the Guardian Ad Litem to appear. On August 14, 2012, the court signed an order appointing Anna Nechayev as GAL (GAL).
On September 19, 2012, the proceeding was adjourned by the Court for the GAL to meet with Respondent.
On December 6, 2012, Petitioner moved for leave to conduct an independent medical examination of Respondent. On January 15, 2013, Respondent cross-moved for discovery and a protective order. The motions were argued and submitted on February 28, 2013, and on March 9, 2013, this Court issued an order consolidating the motions for disposition and granting Petitioner's request for an independent exam.
On October 8, 2013, Petitioner moved for an order restoring the proceeding to the calendar for trial. The motion was granted by this court pursuant to an order dated November 13, 2013, providing that any final motions were to be made within 20 days and scheduling trial for January 23, 2014.
On March 26, 2014, the case was transferred by the court (Wendt, J) for assignment to a trial judge. On May 7, 2014, the proceeding was assigned to Part L for trial. Respondent made an application for this Court to recuse itself, based on the Court's familiarity with the proceeding in connection with discovery orders previously issued. The Court denied the application. The trial commenced with the parties marking documents for identification. The trial continued on June 2, 18, and August 1, 2014. On August 1, 2014, the trial concluded and the proceeding was adjourned to September 16, 2014, for the submission of post trial memoranda.
On September 16, 2014, post trial memorandum were submitted, and the Court reserved decision.
FINDINGS OF FACT
Petitioner is the owner of the subject building pursuant to a deed dated December 1, 2003 (Ex 1). There is a valid multiple dwelling registration on file with HPD (Ex 2). Respondent is the rent-stabilized tenant of record of the Subject Premises, pursuant to an original written lease dated July 18, 1994 (Ex 4) and most recently renewed for a period through and including July 31, 2010 (Ex 5). When Respondent executed her April 1, 2006 renewal (Ex 16) Respondent attached a hand written note stating “I would still like to switch apt & surrender 6B for total upgrade PLEASE CONSULT INFO before executing!!! Much better deal for Solil Management!”
DHCR records as of June 6, 2013 show Respondent as the registered tenant of record with a legal registered rent of $1500.24 per month (Ex 3).
Petitioner hired a private investigator to install a surveillance camera outside the Subject Premises. The parties stipulated to the admission into evidence of a Video Report of Samatt Research Inc. covering a period of July 6, 2009 through July 21, 2010 (Ex 6). According to the Report during this entire period, Respondent spent one night in the Subject Premises entering July 18, 2009 at approximately 11:30 pm and leaving the next morning at approximately 9:300 am. Respondent did not substantially dispute this evidence, but implied through Danoski's testimony, that she may have been in the apartment on one additional occasion during this period to get a pair of shoes.
Danoski testified on behalf of Respondent. Danoski is the tenant of record of Apartment 8G in the subject building. Respondent formerly lived in apartment 8G in the subject building. Danoski has lived in Apartment 8G since 1994, and previous to taking over Respondent's lease, he and the Respondent lived together in apartment 8G for a brief period in the 1990s, while Respondent was still the tenant of record of that apartment. Apartment 8G is a studio apartment.
Danoski works as an editor for CBS for the news program 60 Minutes. Danoski met Respondent in 1989, when Respondent was working at CBS. Danoski described Respondent as vivacious, confident and outgoing when they met. Respondent and Danoski were coworkers and in 1989 or 1990 they started dating. According to Danoskui, they had a “fling” that lasted less than a year. During this period, Danoski and Respondent spent time living together in apartment 8G at the subject building.
In 1994, Respondent told Danoski that she was going to give up her tenancy in Apartment 8G, and move to a one bedroom apartment in the same building, however in order to effectuate the transfer, Respondent needed someone to immediately take over her lease. This occurred in June or July of 1994. Danoski took over the lease for apartment 8G, and Respondent moved into the Subject Premises.
Danoski testified that as time went on, Respondent became remote and much less communicative. Danoski testified that he observed the change starting in January 1994 and continuing for approximately two and a half years. During this period, Danoski and Respondent remained very close and spent a lot of time together. By December 1995/January 1996 Respondent was no longer able to keep working at CBS. Around this period new digital editing equipment came into favor that changed the nature of Respondent's work. Respondent had difficulty with the new equipment. Respondent also had an ongoing conflict which had developed with one of her supervisors at work. Respondent stopped working and went on disability as of early 1996.
Danoski testified that after going on disability Respondent slept a tremendous amount and started cutting herself. Respondent showed Danoski where she had cut her legs. In 1999 or 2000 Respondent began to visit Danoski in his apartment, and regularly spend time there.
Danoski admitted that Respondent was regularly occupying Apartment in 8G by 2002. Respondent cooking there, slept there and had her own keys to apartment 8G. Respondent's occupancy apartment 8G continued through 2005, when she moved in with Danoski and no longer used the Subject Premises for living purposes. From 2005 forward Respondent lived in apartment 8G, sleeping there nightly. From this point forward, Respondent occupied apartment 8G all the time. Respondent either slept on the couch or on the bed. Sometimes Respondent and Danoski shared the bed. Respondent kept personal belongings in apartment 8G, including underwear, clothing, footwear and toiletries.
Respondent would have Danoski bring anything she needed into apartment 8G. Respondent had her mail delivered to her by Danoski in apartment 8G. Anything Respondent needed for living purposes during this period she arranged to have delivered to her in apartment 8G, including laundry, prescription drugs, food, and cash. During this period Respondent began ordering things on line and using the Subject Premises essentially as a storage facility. Photographs from December 2007 show the bedroom and livingroom as being used as storage for boxes and maintained in a manner inconsistent with the use of the premises for actual living purposes (Ex 12).
Danoski testified that he was quite surprised when Respondent started living with him, and that from 2005 forward Respondent has no contact with any other people. Respondent paid money to Danoski during this period. Danoski did not characterize the money as rent, but acknowledged Respondent was giving him cash regularly.
Respondent lived in apartment 8G through from 2005 through 2009 without leaving at all. Respondent left apartment 8G one time in December 2009. After that Respondent continued to live in apartment 8G, but started to make occasional excursions. This continued through April 2010, when Respondent received the initial notice from Petitioner about this non-primary residence proceeding. Notwithstanding said notice, Respondent continued to live in apartment 8G through March 2012. At that point, Respondent moved back into the Subject Premises. Danoski testified that since that time, Respondent has never returned to apartment 8G, not even to visit.
Danoski testified that Respondent had issues with the conditions of the Subject Premises but the Court does not find that Respondent's failure to occupy the Subject Premises at any point in time was based on alleged conditions or repairs. Nor was this defense pled by Respondent in her answer. Danoski testified that Respondent was unable to communicate with management regarding any repair requests and acknowledged that he never sent a single letter to management requesting repairs on Respondent's behalf.
To the extent Danoski testified that the need for repairs in the Subject Premises was the reason that Respondent lived in his apartment rather than the Subject Premises, the court does not credit this testimony. Danoski was clearly biased in favor of Respondent and wished to offer testimony he believed would help Respondent successful defend this proceeding.
James Georgiano (Georgiano) also testified credibly on behalf of Petitioner that and he has been the property manager for the Subject Building since 2006. Georgiano never had any interactions with Respondent, but did have one meeting in early 2007 with Danoski where Danoski complained on behalf of Respondent of the quality of repair work previously done by Petitioner. Georgiano tried to address these concerns but had difficulty getting Respondent to give access. Many of the issues raised by Danoski on behalf of Respondent were esthetics rather than violations of the Housing Maintenance Code.
Zola Farquharson (Farquharson) a representative from Con Edison was subpoenaed by Respondent and testified at the trial. Farquharson testified that there was almost no usage of electricity in the Subject Premises from 2007 through 2013. From August 2007 through December 2010 electrical usage from between 0 and 20 kilowatts. From January through June 2011, the consumption was only slightly higher ranging between 100 to 200 kilowatts per month with usage continuing to build as high as 306 kilowatts in one month in 2013 (see Ex DD).
THE MEDICAL EVIDENCE
As established above, Respondent did not use the Subject Premises for actual living purposes from 2005 through March 2012. Respondent asserts that she did not live in the Subject Premises for these six years, because her mental illness prevented her from doing so. Petitioner acknowledges Respondent's mental illness, but asserts she made a choice not to live in the Subject Premises during this period, and that her illness did not prevent her from doing do. In this regard the parties presented evidence from several psychiatrists.
Dr. Peter Stastny testified on behalf of Respondent. Dr. Stastny was stipulated to be an expert in adult psychiatry by the parties. Dr. Stastny specializes in adult psychiatry and treats patients with a broad range of psychiatric illnesses. Respondent was referred to Dr. Stastny by Dr. Reissner. The first contact Dr. Stastny had with Respondent was a phone call in February 2011, after the commencement of this proceeding, and it appears that Respondent sought this treatment from Dr. Statsny in response to the litigation commenced by Petitioner. Dr. Stastny “treated” Respondent from February 2011 forward by having a “phone session” one time per month. The court finds that only on one occasion in 2011 did Dr. Stastny actually meet Respondent, although his testimony was contradictory in this regard. Dr. Stastny diagnosed Respondent with complex Post Traumatic Stress Disorder and Panic Disorder with Agoraphobia. Dr. Stastny prescribed Respondent Zanax, and testified this was particularly effective for Respondent.
Dr. Stastny testified that Respondent found the prospect of going back to the Subject Premises overwhelming and did not want to be away from Danoski. Dr. Stastny testified that Respondent's prognosis was difficult to predict, but that its possible she could commit suicide or end up being hospitalized in reaction to stress. Dr. Stastny was present when Respondent was examined by Petitioner's psychiatrist on April 25, 2013. Dr. Stastny testified that he is still treating Respondent, whom he described as doing “significantly” better, evidenced in part by the fact that Respondent now is able to stay in the Subject Premises, and go out occasionally.
Dr. Stastny acknowledged he did not review a single record pertaining to Respondent's psychiatric history before he began his monthly phone sessions. Dr. Stastny was not aware that Respondent had been living in apartment 8G since 2005, and thought that she had started living in apartment 8G only one to two years before he began treating her.
Dr. Statsny's testimony did not support Respondent's position that she was forced to move out of the Subject Premises because of any conflict with a contractor or as a result of her illness, rather, as noted Dr. Statsny testified Respondent moved into apartment 8G because she wanted to be with Danoski. Dr. Statsny noted that as of 2011, Respondent had received no treatment since approximately 2007 (Ex Q). In the Spring of 2012, Dr Statsny opined that it was the eviction proceeding that precipitated Respondent's “... deterioration of her symptomolgy, and ability to function, including a growing sense of despair ... (Ex Q).” This contradicts his testimony at trial that Respondent was getting better at this point as evidenced by her moving back into the Subject Premises.
In sum, the court does not give great weight to Dr. Statsny's testimony, finding he did not actually and properly treat Respondent, but was hired by Respondent for phone consultations in order to support Respondent's defense in this proceeding. Dr. Statsny was unfamiliar with many of the actually facts pertaining to where Respondent was living, during what periods, and could not explain how the alleged incident with the contractor in 2009 resulted in Respondent's moving in with Danoski in 2005.
Dr. Steve Jacob Reisner also testified on behalf of Respondent. Dr. Reisner is a clinical psychologist licensed to practice in New York State. Dr. Reisner came to know Respondent after being contacted by Prudential Insurance Company, as a consultant for their disability program, to do a consultation with Respondent. Dr. Resisner did an assessment of Respondent and saw her approximately three times, after which he prepared a report for Prudential.
The Report (Ex P) dated July 9, 1996, references that Respondent was referred to Dr. Resisner for evaluation due to depression, self destructive activity and recent serious suicide attempt. The Report additionally referenced that Respondent was being treated by two other doctors, and was not satisfied with their treatment. The report stated Respondent had originally been diagnosed with major depression. The doctors treating Respondent at that period had prescribed medication and believed Respondent needed to be hospitalized for ECT treatment.
At the time of the evaluation, Respondent told Dr. Resisner that she lived alone, but had a close relationship with a man who lived in the same building and took care of her. Respondent told Dr. Resisner that her difficulties at 60 Minutes came from the fact that she had developed a hostile relationship with her producer, and she had difficulty with the new computer technology being used for editing. Respondent stopped work in December 1995 and started aggressively cutting herself, and had thoughts of suicide. The letter also suggest Respondent was skilled in manipulating people, even the professionals treating her to obtain the results she desired as evidenced by Dr. Reisner's statement that:
Ms. Wertheimer appears capable of evoking strong counter-transferential responses in those around her. (During the evaluation process, for example, she was admitted to Silver Hill Hospital and placed on a locked unit as she was perceived to be an immediate, serious danger to herself, yet within 24 hours, after making a substantial fuss ... she was released from the hospital altogether). This capacity to engage others ... is less indicative of depression and more consistent with AXIS II diagnoses (Ex P).
“Countertransference” is defined as “the surfacing of a psychotherapists's own repressed feelings through identification with the emotions, experiences or problems of a person undergoing treatment (Random house Dictionary 2014).
Dr. Reisner concluded at this point that Respondent was not dealing with a temporary or recent issue, but showed a need to address “long-standing characterological issues”.
In a February 18, 1998, letter, Dr. Reisner indicates that he had gone from being hired by Prudential to evaluate Respondent to acting as Respondent's therapist by treating her. Dr. Reisner still expressed his opinion that Respondent needed to be hospitalized, stating he had previously “tried” to have Respondent hospitalized but found her “ambivalence and extreme sensitivity, coupled with rage, rendered such a move impossible (Ex N).” In February 1998 Respondent again tried to commit suicide by taking an overdose of pills and putting a plastic bag over her head.
Dr. Reisner kept no notes of any of his sessions with Respondent. Dr. Reisner stopped treating Respondent in October 1998, and had little contact with Respondent until she reached out to him after the landlord had commenced this litigation. Given that Dr. Resiner stopped treating Respondent over a decade prior to the trial, and many years before she started living with Danoski the court gives Dr. Resiner's testimony limited weight, and in any event nothing in Dr. Reisner's testimony supported Respondent's defense that her illness required her to live with Danoski rather than in the Subject Premises.
Dr. Alexander Bardey performed an independent medical examination of Respondent for Petitioner on April 25, 2013.Dr. Bardey's report was admitted into evidence (Ex 7) and he testified at the trial on behalf of Petitioner. Respondent told Dr. Bardey that she moved into apartment 8G because of a fight she had with the landlord's contractor, and that once there she could not leave. Dr. Bardey concluded that while Respondent described her inability to live in the Subject Premises as being the fault of the landlord and its contractor, her “... symptomatology appear to have predated the complications in her apartment....”. Dr. Bardey concluded that Respondent's illness did not prevent her from occupying the Subject Premises during the relevant period, that her decision to live with Danoski instead in apt 8G was “knowing and willful.”
Dr. Bardey was qualified at trial as an expert in forensic psychiatry. Dr. Bardey's testimony at trial supported his conclusions that Respondent was not receiving appropriate treatment for her mental illness, and Respondent's decision to move in with Danoski was not a result of her illness, and that most of Respondent's focus was on avoiding the proper treatment she needed.
Dr. Bardey concluded the treatment Respondent had received was “grossly insufficient” the court finds the evidence supports this conclusion. Dr. Bardey testified that Respondent has “borderline personality disorder ” and anxiety disorder with panic. Dr. Bardey specified the appropriate treatments for such a diagnosis and noted Respondent had not been receiving any forms of the appropriate treatments.
Dr. Bardey testified that typically people with Agoraphobia are able to see their doctor's to receive treatment and live in their own homes. While Dr. Bardey acknowledged Respondent may suffer from panic attacks, he opined that there was nothing in her diagnosis that led her to move in with Danoski other then that is what Respondent chose to do.
The court credits the testimony of Dr. Bardey, and finds it to be supported by other evidence in the record.
Respondent did not testify at the trial. Respondent was present for some portions of the trial. No explanation was offered by either psychiatrist testifying on behalf of Respondent as to why Respondent did not testify or asserting that Respondent's mental illness prevented her from testifying.The lack of testimony by Respondent on her own behalf impedes the Court from making any finding that Respondent intended to return to living in the Subject Premises during the many years she was living with Danoski.
THE PRUDENTIAL RECORDS
Respondent also submitted certified records from Prudential Financial pertaining to Respondent's disability benefits and medical information from 1996 forward (Ex C and C–1). These records provide that as of April 25, 1995, Respondent was unable to leave the subject building due to her mental illness.
Dr. Arlene Kagle who had also previously treated Respondent had diagnosed Respondent as Bi–Polar as of April 25, 1996.
A June 26, 1996 notation to the Prudential file provides that Respondent had become fixated on having a baby with “Danoski”. Further notation in that month provide that Respondent's diagnosis was Bipolar Disorder, and that she showed symptoms of a manic condition, including a highly delusional grandiosity.
A March 5, 1997 a notation to the Prudential file indicates that Dr. Resiner had found Respondent to be improving noting that she was no longer cutting herself, overdosing or “destroying her apt.” and that she had refrained from these activities for a period of two months.
In September 1998, Respondent advised Prudential she was staying in apartment 8G because the Subject Premises was undergoing repairs, and that the “neighbor” she was staying with would be picking up her mail and looking after her affairs.
In October 1998, Respondent stated the “repairs” were on going, she had no energy to clean the Subject Premises and was tired of having to provide access to Petitioner's workers and that she gave away many items in the Subject Premises to Goodwill.
In May 2000, Respondent advised Prudential to contact her at her neighbor's No. 212 xxx xxxx. This is Danoski's number. Respondent also listed this number as her “work” number in forms submitted to Prudential in 2010.
In February 2005, Respondent submitted a form to Prudential stating she had not left the Subject Premises since August 2004. The same month Dr. Remen signed a form stating he had first treated Respondent in April 1999. In April 2002, Remen signed a form stating he had irregular visits with Respondent and that the only form of treatment Respondent was receiving was medication.
The Prudential records include a hand written note from Dr. Stephen Remen, MD who was treating Respondent with phone sessions and indicated that as of March 30, 2006, Respondent had been living in her boyfriend Matt's (Danoski) apartment in the same building because the Subject Premises had no sink, he further stated that Respondent and her boyfriend were not speaking at the moment, and that Respondent had recently received an inheritance from her aunt, which she spent entirely on her mother and sister. Dr. Remen prescribed several medications for Respondent.
In January 2007, Dr. Remen stated he told Respondent he could not treat her properly because she would not come to his office and he felt she was not helping herself and not making an effort.
In June 2010, Respondent filed a form with Prudential stating that Dr. Remen had discontinued seeing her as a patient, and that she had not seen another doctor since that time. Respondent stated in a supplemental Claimant Statement submitted June 15, 2010 “I think I ve gotten worse in many ways.” and “I cannot face people, or leave apt alone usually I don't go out. Selfcare has been very difficult.”
Respondent receives long term disability from Prudential in the amount of $1903 gross per month. Respondent also receives monthly social security benefits.
The Prudential records as a whole, suggest that Respondent was actually regularly occupying apartment 8G long before the 2002 date acknowledged by Danoski and suggests that she may have been living there as early as the late 1990s rather then the 2005 date acknowledged by Respondent and Danoski.
DISCUSSION
§ 2524.4(c) of the Rent Stabilization Code (RSC) allows for a landlord to refuse to renew a lease of a rent stabilized tenant and commence an eviction proceeding against the tenant where the housing accommodation is not occupied by the tenant as his primary residence.
§ 2520.6(u) of the RSC in defining primary residence provides:
Although no single factor shall be solely determinative, evidence which may be considered in determining whether a housing accommodation ... is occupied as a primary residence shall include ...
3) Occupancy of the housing accommodation for an aggregate of less than 183 days in the most recent calendar year; except for temporary periods of relocation pursuant to section 2523.5(b) of this title;
§ 2523.5(b)(2) of the RSC provides that temporary periods of relocation shall include periods where the tenant is hospitalized for medical treatment or has such other reasonable grounds as determined by DHCR.
In this case it is well established and nearly undisputed that Respondent did not live in the Subject Premises from 2005 through 2012, Respondent's focus at trial was attempting to establish that her absence for this prolonged period is excusable for purposes of nonprimary residence analysis.
It is clear that Respondent is mentally ill and it appears from the record that she has received little to no treatment for her debilitating long term mental illness. However, Respondent failed to establish at trial any direct connection between her mental illness and her failure to occupy the Subject Premises as opposed to Danoski's apartment in the same building. Indeed the evidence supports a conclusion that she lived in Danoski's apartment for that period, instead of the Subject Premises, because she wanted to be with Danoski.
Petitioner argues and the Court agrees that the Appellate Term has ruled on a case with very similar factual underpinnings. In 405 E 56th St LLC v. Malfa (35 Misc.3d 84 ) the tenant was absent from the apartment for one and a half years, and lived instead with a companion in a near by apartment. The tenant in Malfa argued both that the condition of the apartment and his fragile psychological condition required him to live with his friend.The trial court had dismissed the proceeding finding the tenant's absence was excused by the physical condition of the apartment and by his “severe mental illness,” and that the tenant always intended to return to living in the Subject Premises.
While the Appellate Term's reversal was largely based on what it found to be an incorrect evidentiary ruling, the Court also held:
Even putting aside the evidentiary problem, we find, based on our independent weighing of the evidence that the court [placed undue reliance on tenant's professed mental illness and his stated fear of “living alone” in concluding that tenant's prolonged absence from the subject apartment was excusable under rent stabilization. Without intending to minimize the psychological challenges already faced by tenant, we find no cogent explanation in the present record as to why tenant's post traumatic stress disorder-said to have initially developed following a traumatic event in 1996–and concomitant fear of living alone were more effectively allayed by tenant's “temporary” relocation to his companion's nearby apartment than by the companion's relocating to tenant's apartment, or how tenant was able to overcome that previously debilitating fear in resuming full-time occupancy of his own apartment within days of receiving the landlord's nonrenewal notice.
(Id at 87 [citations omitted ] ).
Respondent relies on Katz v. Gelman 177 Misc.2d 83, however the Court finds that case in applicable to the case at bar. In Katz, the tenant was institutionalized for approximately three years in various residential facilities for treatment of depression and substance abuse. The tenant was discharged prior to the trial and resumed occupancy of the subject premises after service of the predicate notice. The court held that the tenant's absence was involuntary and for medical reasons and noted that the treatment he had received was designed to and did prepare him to return to independent living. In the case at bar, the absence by Respondent was voluntary, and rather then seeking treatment for her illness in an institution as had been recommended by her doctors, she used this period to avoid seeking the treatment she needed. Additionally, Respondent's absence from the Subject Premises was substantially longer then two or three years, and continued for years after service of the predicate notice herein.
In fact, in examining the tenancy as a whole, Respondent's absence constituted a large portion of the entire tenancy. Respondent's tenancy in the Subject Premises began in 1994, of the approximately 20 year term, over one third of Respondent's tenancy was spent living in Apartment 8G and using the Subject Premises as a storage facility.
Equally inapposite is WSC 72Nd Owners LLC v. Bondy 21 Misc.3d 145(A) where again the tenant's absence was only for two years, was involuntary, and was spent in an institution where the tenant received treatment which prepared her for a return to independent living.
Finally, there is the precedent of Toa Contruction Co v. Tsitsires 54 AD3d 109. In Toa, there was no dispute that the tenant's failure to live in the subject premises was due to his mental illness. However, the court held that because there was no evidence that the tenant would ever be able to live in the Subject Premises, his absence was not excusable. In this case, Respondent failed to establish that her years living with Danoski, as opposed to the Subject Premises, were attributable to her illness rather then her preference to live with Danoski. Respondent failed to establish any precipitating event that led her to stop living in the Subject Premises and start living with Danoski, nor was there any substantial change in her ability to function when she stopped living with Danoski and moved back to the Subject Premises. Even after moving back to the Subject Premises, Respondent remains unable to function or engage in a normal life style, rarely leaving the Subject Premises, still avoiding treatment, unable to work or even testify on her own behalf at trial. Nor was there any evidence that once this trial is over Respondent will continue to live in the Subject Premises,.
The factors weighing on the side of Respondent are that she did not sublet the Subject Premises, she continued to use the Subject Premises as her address of record on documents and received mail there, and she maintained belongings in the Subject Premises. Additionally, there is the fact that she resumed occupancy of the Subject Premises prior to the trial. However these facts are insufficient to establish that Respondent's absence was excusable, or to overcome the preponderance of credible evidence at trial that Respondent started regularly occupying apartment 8G in 2002, both cooking there and sleeping there, and from 2005 through March 2012 lived exclusively with Danoski in apartment 8G. This absence was not established in any way to be mandated for medical treatment, rather it was based on Respondent's desire to live with Danoski.
While mail continued to be addressed to respondent at the Subjecty Premises, it was actually delivered to her in Apartment 8G by Danoski.
CONCLUSION
Based on the foregoing, the Court finds that Petitioner is entitled to a final judgment of possession and forthwith issuance of the warrant of eviction. Execution of the warrant is stayed through March 30, 2015, to afford Respondent an opportunity to vacate conditioned upon payment of use and occupancy at the last lease rate between the parties. Execution of the warrant shall be on Marshall's notice., APS notification, as well as notice to the GAL.
This constitutes the decision and order of this court.