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Katz v. Gelman

Supreme Court, Appellate Term First Department
May 20, 1998
177 Misc. 2d 83 (N.Y. App. Term 1998)

Summary

In Katz the tenant was absent from his leased premises while he was institutionalized in various transitional residential facilities for treatment of depression and substance abuse, with the intent of preparing to return to independent living.

Summary of this case from TOA Construction Co. v. Tsitsires

Opinion

May 20, 1998

Appeal from the Civil Court of the City of New York, New York County (Anne Katz, J.).

Chadbourne Parke, L.L.P., New York City (Donald I. Strauber, Daniel E. Estrin and Richard B. Brosnick of counsel), for appellant.


Final judgment entered April 4, 1997 reversed, with $30 costs, and final judgment granted in favor of tenant dismissing the holdover petition.

In this holdover proceeding, landlords seek possession of tenant's loft unit situated in an interim multiple dwelling upon the ground of nonprimary residence (see generally, Matter of Lower Manhattan Loft Tenants v. New York City Loft Bd., 66 N.Y.2d 298). Tenant commenced occupancy in 1978 and, during the period November 1993 through August 1996, was institutionalized in various residential facilities for treatment of depression and substance abuse. He was discharged prior to trial of the proceeding and resumed occupancy in the premises, albeit subsequent to service of the termination notice.

As noted by the trial court in its decision, the facts are not substantially in dispute. We disagree, however, with the court's legal conclusion that the 41-year-old tenant relinquished the loft as his primary residence. Unlike cases involving aged tenants confined in a nursing home facility who are unable to demonstrate an ability to return to the regulated premises (see, Matter of L.J.M. Venture No. 1 v. Joy, 105 Misc.2d 291; 65 Cent. Park W. v. Greenwald, 127 Misc.2d 547), this tenant was residing in transitional homes designed to prepare patients for a return to independent living. Indeed, the trial evidence indicates that tenant had already made a successful return to the loft — where his meager belongings always remained — without relapse.

Manifestly, tenant was precluded from maintaining "'an ongoing, substantial, physical nexus with the controlled premises for actual living purposes'" (Sommer v. Ann Turkel, Inc., 137 Misc.2d 7, 10) during his involuntary absence for medical reasons. We view this absence as excusable, for purposes of nonprimary residence, where the institutionalization was transitory, not permanent in nature; where there was no abandonment of the premises or establishing of any new residence; and where a resumption of occupancy has taken place (Cohen Zerenowitz Realty Corp. v. Asero, N.Y.L.J., Nov. 21, 1991, at 26, col. 4 [App. Term, 1st Dept]; Soybel v. Gruber, 136 Misc.2d 430).

Since landlords did not meet their burden of proving that tenant does not occupy the loft as his primary residence, or maintains a primary residence at a place other than the subject premises (Sharp v. Melendez, 139 A.D.2d 262, 264), the petition must be dismissed. We note that landlords have not appeared on this appeal.

PARNESS, J.P., McCOOE and DAVIS, JJ., concur.


Summaries of

Katz v. Gelman

Supreme Court, Appellate Term First Department
May 20, 1998
177 Misc. 2d 83 (N.Y. App. Term 1998)

In Katz the tenant was absent from his leased premises while he was institutionalized in various transitional residential facilities for treatment of depression and substance abuse, with the intent of preparing to return to independent living.

Summary of this case from TOA Construction Co. v. Tsitsires

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.

Summary of this case from Fifth Ave. LLC v. Wertheimer
Case details for

Katz v. Gelman

Case Details

Full title:GERALD KATZ et al., Respondents, v. ALEX GELMAN, Also Known as ZINOVY…

Court:Supreme Court, Appellate Term First Department

Date published: May 20, 1998

Citations

177 Misc. 2d 83 (N.Y. App. Term 1998)
676 N.Y.S.2d 774

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