Carmine Ltd. v Gordon

[*1] Carmine Ltd. v Gordon 2005 NY Slip Op 51763(U) [9 Misc 3d 138(A)] Decided on October 31, 2005 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 31, 2005
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT:
HON. WILLIAM P. McCOOE, J.P.
HON. WILLIAM J. DAVIS
HON. PHYLLIS GANGEL-JACOB, Justices.
570359/04

Carmine Limited, Petitioner-Landlord-Appellant,

against

Terence Gordon and Jane Gordon, Respondents-Tenants-Respondents, -and- "JOHN DOE" and "JANE DOE," Respondents-Undertenants.

Landlord appeals from that portion of a final judgment of the Civil Court, New York County, entered October 31, 2003 after a nonjury trial (Cyril K. Bedford, J.) which dismissed the petition as against tenant Jane Gordon in a nonprimary residence holdover proceeding.

PER CURIAM: [*2]

Final judgment entered October 31, 2003 (Cyril K. Bedford, J.) affirmed, with $25 costs.

The trial court's fact-laden determination that respondent Jane Gordon, a long-term (26-year) rent stabilized tenant, primarily resides at the subject Carmine Street apartment represents a fair interpretation of the evidence. The decision of the factfinder should not be disturbed upon appeal unless it is obvious that its conclusions could not have been reached under any fair interpretation of the evidence, especially when those findings rest in large measure on considerations relating to witness credibility (Claridge Gardens, Inc. v Menotti, 160 AD2d 544 [1990]). The trial court, which characterized tenant's testimony as "frank, forthcoming and credible," expressly found that she maintains an ongoing presence at and, indeed, "resides only" in the subject apartment. The record shows that tenant lived in the apartment for five years before she married, and continued to live in the apartment after her husband departed. Although tenant acknowledged that during the relevant time period she spent considerable time at her estranged husband's apartment at Stuyvesant Oval, where she often slept on a couch while helping to care for their minor son, the trial court was justified in determining that the couple maintained separate primary residences (see Matter of Rose Assocs. v State Div. of Hous. & Community Renewal, 121 AD2d 185 [1986]). That certain documents — including joint tax return and other financial records, all of which were prepared by tenant's husband — list the Stuyvesant Oval address, is not fatal to tenant's claim of primary residency, and does not, in these circumstances, preponderate over her plausible and fully credited testimonial evidence (see 23 Jones St. Assocs. v Keebler-Beretta, 284 AD2d 109 [2001]).

We reject landlord's argument that the testimony of witness Hoch, a fellow tenant in the subject building premises, was "extremely compelling" and required the trial court to give it "great weight." To the extent that Hoch's testimony conflicted with that offered by tenant, it was adequately explained by their different schedules, and merely raised issues of credibility for the trial court to resolve (see RST Corporation v Meyerhoff, 4 AD3d 148 [2004], lv denied 2 NY3d 708 [2004]). Whether to draw a negative inference from tenant's failure to call her son as a witness was also within the factfinder's discretion (see 318 East 93, L.L.C. v Ward, 276 AD2d 277, 278 [2000]) and we find no abuse of that discretion in the trial court's implicit refusal to do so.

While proof sufficient to make a prima facie showing of nonprimary residence shifts the burden of going forward to the tenant, the ultimate burden of persuasion remains on the landlord seeking eviction on the basis of nonprimary residence (see generally, Emel Realty Corp. v Carey, 188 Misc 2d 280, 282-283, affd 288 AD2d 163 [2001]). On this record, and evaluating the entire history of the tenancy (see 615 Co. V Mikeska, 75 NY2d 987, 988 [1990]), we agree that landlord failed to meet that burden here.
I concur
I concur [*3]
SUPREME COURT APPELLATE TERM FIRST DEPARTMENT NOVEMBER 2004

McCOOE, J.P., DAVIS, GANGEL-JACOB, JJ.
#04-240CARMINE LIMITED, Petitioner-Landlord-Appellant-v-TERENCE GORDON

AND JANE GORDON, Respondents-Tenants-Respondents, "JOHN DOE" AND

"JANE DOE," Respondents-Undertenants.

DISSENTING MEMORANDUM

William P. McCooe, J.

I respectfully dissent. The documentary evidence, the lack of credibility and implausibility of the testimony of the tenant and her husband, and the failure of the trial court to consider the testimony of a witness are the basis for the dissent's factual finding that the landlord has proven that the subject premises is not the primary residence of the tenant wife.

There are four reasons for disagreeing with the factual findings of the trial court.

First, it failed to give the proper weight to the undisputed documentary evidence, particularly the lack of electric usage at the subject apartment. Second, the trial court decision omitted and therefore failed to consider the adverse testimony of the tenant's neighbor. Third, the trial court failed to give a negative inference to the failure of the tenant to call her son as a witness. Fourth, the tenant and her husband falsified documents in order to retain both apartments.

The tenant and her husband were living in the subject one bedroom walk-up apartment in Greenwich Village (Village) in 1991 with their three-year-old son when they both signed a lease for a two bedroom apartment in Stuyvesant Town (Town). They have both signed lease renewals for this apartment and for the Village apartment to date. Nevertheless they claim that the husband only lives in the Town apartment and the wife only lives in the Village apartment. The wife claims that she never moved from the Village apartment, that only her husband and three-year-old son moved, and that the Village apartment is her primary residence. She claims that she did not move because she and her husband had and still have marital difficulties. They have not divorced nor is there any separation agreement between them. The Documentary Evidence

The husband was employed by Metropolitan Life Insurance Company who was then the owner of Stuyvesant Town. He wrote a letter to a Metropolitan Vice President and friend of the owner thanking him for helping him to get the two bedroom apartment. He stated in the letter, "I guess one of the most important reasons that I want my family to live in Stuyvesant Town is a better quality of life. The Village isn't what it used to be; there is very little for children to do. Jane's great-Aunt and Uncle are original tenants so she has been going there all her life . . . " Jane is the tenant wife.

The second document is her signed joint application for the Town apartment where she stated that she was to be an "occupant" and included her age, occupation and salary. The third set of documents are lease renewals for the Town apartment jointly signed to date by her. The fourth set of documents are joint income tax returns listing the Town address signed by her. The fifth set of documents are all financial documents which include a joint bank account, joint credit card and bills subsequent to the move listing the Town address. There are no financial documents only in the [*4]wife's name nor are there any financial documents listing the Village apartment. The husband pays all the bills.

The last documents are the records of Consolidated Edison Co. and the testimony of its employee witness who interpreted them. These records were offered to directly establish her non-residence at the Village apartment. The records indicate that for the period between October 1999 and August 2000, which was the month the notice of non-renewal was sent, the electric usage was zero kilowatts (kws) for October, November, December 1999 and January 2000; February 10kws and March through August 2000 the usage ranged from 30 to 70kws. The 70kws usage was in August 2000 when the notice of non-renewal was sent. The testimony of the Consolidated Edison employee was that a refrigerator could not be operated on 70kws of electricity and that a hundred watt bulb would use about 28kws a month if left on for eight (8) hours per day. The wife testified that for part of July and August 2000 she had a partial loss of electric
power in the kitchen area, that she was away from the apartment on vacation during part of those two months and that she moved the refrigerator out of the kitchen to an area where there was power. Furthermore during August 2000 her electric consumption was 70kws. Accepting the truth of her testimony solely for the purpose of this analysis, this does not explain the lack of power consumption for the balance of the period. The tenant wife also testified that she and her husband had reconciled during part of this period in order to explain the low power consumption.

The notice of non-renewal was sent in August 2000. The tenant's documentary evidence was a driver's license issued March 11, 2002, a voter registration card issued October 2, 1979, and a juror's summons dated February 13, 2003 listing the Village address. The dates show they have no evidentiary value in view of the date of the notice of non-renewal. One Consolidated Edison bill was incorrectly sent to the Village apartment. The remaining Con Edison bills were sent to the Town address.

The Majority cites Matter of Rose Associates v. State Division of Housing and Community Renewal (121 AD2d 185 [1st Dept 1986]) for the proposition that "the trial court was justified in determining that the couple maintained separate residences." The Court at page 185 stated: ". . . the tenant submitted the following items listing the subject premises as her address voter registration card, driver's license, bills from various utilities, credit cards, bank and dividend statements, and letters from two neighbors with the subject building stating that they often see her in the building and have known her as a resident neighbor for many years" (Matter of Rose Associates v. State Division of Housing and Community Renewal, 121 AD2d 185, 185 [1st Dept 1986]).
The facts are clearly dissimilar from this case.

Second, the trial court decision failed to indicate that it considered the testimony of a tenant from across the hall of the subject apartment who testified that for approximately eighteen months prior to the commencement of this proceeding he never saw the wife or anyone else leave the apartment. After the commencement of this proceeding, he saw her and heard noise coming from the apartment. The tenant wife never testified that she saw the neighbor before the commencement of this proceeding. Contrary to the Majority, the trial court never resolved the credibility of this witness because it never considered it. Therefore RST Corporation v. Meyerhoff (4 AD3d 148 [1st Dept 2004]) cited by the Majority is not relevant.

Third, an adverse inference should have been drawn from the failure to call the fifteen- year-o[*5]ld son. The Majority cites 318 East 93, LLC v. Ward (276 AD2d 277, 278 [1st Dept 2003]) where the Court said it was discretionary "in light of the testimony concerning tenant's relationship with her daughter." Here there is no reason given.

Fourth, the evidence establishes that the husband and wife are not worthy of belief. Her testimony, and that of her husband, that only her husband and three-year-old moved out of the subject apartment because of marital difficulties, is contradicted by the letter sent by her husband giving the reason for moving. The reason he gave in the letter is logical together with the fact that they needed to move from a one bedroom to a two bedroom apartment because they needed a room for their three-year-old son. There is no documentary evidence establishing that she continued to reside in the subject Village apartment. Apart from the documentary evidence offered by the landlord, it would be expected that the wife whose salary was more than $52,000.00 per year, and was allegedly living separate from her husband because of marriage difficulties, would have her own bank account, checking account and credit card. Her husband pays all the bills which are sent to the Stuyvesant Town address. She has shown no document or writing which indicates she was living in the subject apartment. She states that she has a telephone at the subject apartment but has not offered the bill to show any charges. She seeks to explain her absence from the subject apartment stating that she does sleep at the Stuyvesant Town apartment at times but on the couch. She also testifies that they were reconciled during a part of this period and she leaves some clothing and necessities there and that she travels often for business and pleasure.

In summary, there are two apartments with the husband and wife signing renewal leases for both apartments while claiming a separate residence at only one. The husband denies residence at the Village apartment and the wife denies residence at the Stuyvesant Town apartment. The rent at the subject apartment in the Village is only $596.13 per month with a rent stabilized lease. She has no time relevant document or writing listing the subject apartment as her residence. All documents and bills list the Town address. The husband and wife have falsified the occupancy provisions of the two leases and their testimony as to separate occupancies is equally false and given in order to retain leases for both apartments.

The landlord has established that the wife does not have her primary residence at the Village apartment. It does not have to establish that her primary residence is at the Stuyvesant Town apartment only that it is not at the Village apartment (Glenbriar Co. v. Lipsman, NYLJ, Oct. 21, 2004 at 18, col 5 [Ct App]; Sommer v. Ann Turkel, Inc., 137 Misc 2d 7 [App Term, 1st Dept 1987]; Toa Const. Co. v. Tsitsires, NYLJ, Mar. 26, 2003 at 19, col 1 [App Term, 1st Dept, McCooe, J., dissenting]). The landlord's documentary evidence, particularly the Consolidated Edison records, the absence of any documentary evidence by the tenants, the testimony of the disinterested neighbor and common experience satisfies the landlord's burden of proof.

As stated in Glenbriar Co. v. Lipsman (NYLJ, Oct. 21, 2004 at 18, col 5, at 19, col 3 [Ct App, Rosenblatt, J., concurring]): ". . . Spouses need not share a primary residence, and legitimate arrangements of that kind should be recognized. The open possibility, however, of manipulation and gaming of the system as suggested by this record is dismaying."

The Judgment dismissing the petition should be reversed and possession granted to the petitioner.

This constitutes the decision and order of the court.
Decision Date: October 31, 2005