ST Owner LP v Woloshin

[*1] ST Owner LP v Woloshin 2009 NY Slip Op 51622(U) [24 Misc 3d 1226(A)] Decided on July 28, 2009 Civil Court Of The City Of New York, New York County Kraus, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 28, 2009
Civil Court of the City of New York, New York County

ST Owner LP, Petitioner-Landlord

against

Nadine Woloshin, Respondent-Tenant, TREVOR DUWYN "JOHN DOE" AND/OR "JANE DOE" Respondents- Undertenants.



L & T 80959/07



TO:BELKIN BURDEN WENIG & GOLDMAN, LLP

Attorneys for Petitioner

By: DAVID SKALLER, Esq.

270 Madison Avenue

New York, New York 10016

(212) 867- 4466

SPERBER DENEBERG & KAHAN

Attorney for Respondents Nadine Woloshin

and Roslyn Woloshin s/h/a "Jane Doe"

By: STEVEN SPERBER, Esq.

48 West 37th Street - 16th Floor

New York, New York 10018

(917) 351-1335

Sabrina B. Kraus, J.

BACKGROUND

This summary holdover proceeding was commenced by ST OWNER LP (Petitioner) and seeks to recover possession of Apartment 5H at 277 Avenue C, New York, New York 10009 (Subject Premises), based on the allegation that NADINE WOLOSHIN (Respondent) the rent-stabilized tenant of record does not maintain the Subject Premises as her primary residence.

Respondent acknowledges owning a cooperative apartment in New York City, but alleges she never lived there. Respondent asserts that a physical illness resulting in a two week hospitalization in August 2006, required her to rent out a room in the Subject Premises and spend weekends at her parents' home in New Jersey. Respondent further asserts that her ongoing depression prevents her from handling bills, necessitating that she have financial documents and other traditional indicia of primary residence list either her mother's home in New Jersey or the cooperative apartment as her residence.PROCEDURAL HISTORYOn or about March 21 2007, Petitioner issued a notice of non-renewal advising that Respondent's lease would not be renewed, based on its assertion that Respondent is a non-primary resident, and living in a cooperative apartment owned by Respondent and located in the Seward Park Housing Complex, at 387 Grand Street, Apt. K-170, New York, New York 10002 (Grand Street Apartment). The petition issued on or about July 31, 2007, and the first return date was August 13, 2007. An answer and notice of appearance were filed on behalf of Respondent and her mother, Roslyn Woloshin (RW), through their attorneys on or about September 6, 2007.

The answer originally asserted succession as an alternative claim by RW, however that defense was withdrawn by counsel on the record on May 20. 2009. The answer also asserts an affirmative defense that any time Respondent has spent away from the Subject Premises has been a result of a medical condition, and that the Subject Premises is the primary residence of Respondent.

On the initial return date, the proceeding was marked off calendar, pursuant to a stipulation between Petitioner's counsel and Respondent's brother, Murray Woloshin (MW). The [*2]stipulation provided that Respondent consented to submit to a deposition within 60 days, produce documents, and pay use and occupancy pendente lite.

Respondent's deposition took place on July 30, 2008. After the completion of discovery the case was restored to the calendar on or about February 2009. On April 14, 2009, the proceeding was transferred to Part X. On May 20, 2009, the proceeding was assigned to Part S for trial.

The trial commenced on May 20, 2009, continued on June 15, 2009, and concluded on July 1, 2009. On July 20, 2009, the Court heard closing arguments and reserved decision.

FINDINGS OF FACT

Petitioner is the owner in fee of the building known as 277 Avenue C, New York, New York, 10009, pursuant to a deed dated February 16, 2007 (Exhibit 1). Respondent is the rent-stabilized tenant of record for the Subject Premises, pursuant to a written lease dated July 2, 1991, for a term through and including June 30, 1992 (Exhibit 4), and most recently renewed for a term through and including June 30, 2007. The Subject Premises is a two bedroom apartment. The building has neither a doorman nor a live in superintendent. Electricity and gas are included in Respondent's rent, and are not separately billed by Con Edison to Respondent at the Subject Premises.

Respondent is fifty-two years old and has been working as a Senior Account Executive/Assistant Vice President for the public relations firm of Rubenstein & Associates since 1989 . Respondent's offices are located in midtown Manhattan. Respondent has been described as a workaholic, working a minimum of five days per week from nine am to six pm.

Respondent was previously married, and her husband died of cancer on or about 1999. At the time of her husband's death, Respondent, her husband and their daughter Darcie (Darcie), were living at the Subject Premises. Darcie, was born in April 1997, and was approximately two years old, at the time of her father's death.

Philip Zimmerman was the Proprietary Lessee of the Grand Street Apartment. On or about October 1991, Mr. Zimmerman executed a last will and testament wherein he bequeathed the Grand Street Apartment to Respondent, his niece (Exhibit B). Philip Zimmerman died on or about 2002 from cancer. RW was appointed executrix of the estate and received letters testamentary effective November 13, 2002. Respondent became the sole proprietary lessee of the Grand Street Apartment, pursuant to a written proprietary lease on January 22, 2004. At that time, the Grand Street Apartment was in disrepair and had never been renovated. Respondent took over dealing with the Grand Street Apartment, and decided to do a gut renovation.

On or about June 2004, Respondent put herself on a wait list for a parking spot at the Grand Street Apartment. As of June 2008, Respondent was listed as number 206 on that waiting list.

In the Spring of 2006, RW testified that, due to Respondent's declining health, she packed some clothes and other necessities and moved into the Subject Premises. RW stated she was there at least three days a week, and that on weekends she, Respondent and Darcie went to her home in Livingston, New Jersey. RW testified that during the summer of 2006, she stayed at the Subject Premises all week, and then continued to spend weekends at her New Jersey home with respondent and Darcie.[FN1] [*3]

RW testified that Respondent suffered from depression, and that her condition got worse in 2005 and 2006. Respondent has taken medication for the depression for many years. In or about August 2006, Respondent was hospitalized for approximately two weeks. No medical evidence was offered regarding Respondent's condition and diagnosis, other than observations made by Respondent and her family as lay persons. Respondent missed a total of one month's work because of her 2006 hospitalization.

On or about August 12, 2006, Respondent entered into a written agreement with Trevor Duwyn [FN2] to occupy a bedroom in the Subject Premises, through and including August 1, 2007. The agreement provided that if the arrangement was satisfactory it would be extended. Mr. Duwyn agreed to pay $250 per month, in cash, for the rental. The agreement was signed by MW for Respondent (Exhibit 6R). On or about August 29, 2006, Respondent and Mr. Duwyn signed an agreement with Petitioner regarding his authorized occupancy. Mr. Duwyn lived in the Subject Premises through 2007.

RENOVATION TO THE GRAND STREET APARTMENT

Respondent hired two architects and completed renovation of the Grand Street Apartment by 2005. The Grand Street Apartment has two bedrooms and one bathroom. The entire apartment was renovated. A new kitchen and bathroom were installed. One wall was removed, and new wood floors were installed.

Respondent spent $200,000.00 on the renovation of the Grand Street Apartment, $150,000.00 of which was obtained through a mortgage held solely in her name. Of the $50,000.00 that was not financed, Respondent testified that she paid part and MW also contributed. Respondent put in computers, phone service, cable and air conditioning units for the Grand Street Apartment.

Nestor Kalogrias, testified at the trial. Mr. Kalogrias knows Respondent's family and did work on the renovation of the Grand Street Apartment. Mr. Kalogrias described the job as a gut renovation, and stated everything was replaced including all the walls, floors, sub-flooring and electrical wiring. Mr. Kalogrias testified that the renovation work was done from approximately the fall of 2004 through the spring 2005. Mr. Kalogrias testified that the Grand Street Apartment was reconfigured during the renovations, which required the involvement of an architect.

Mr. Kalogrias testified that the reconfiguration of the apartment and renovations were designed to make the Grand Street Apartment more "livable". He noted that the size of the bathroom was increased, and Respondent removed some walls to create closets. Mr. Kalogrias also did custom built- ins for the Grand Street Apartment, a wooden desk for each of the bedrooms. Mr. Kalogrias testified that the contract price for the renovations was approximately $149,000.00, and the actually bills surpassed that amount. He stated that Respondent paid for the work up front, in accordance with the contract. Mr. Kalogrias further testified that his fee did not include the fee for the architects or any appliances.

Mr. Kalogrias testified that he was hired by Respondent, who signed the contract and paid him directly. Mr. Kalogrias went back to the Grand Street Apartment on a few occasions for touch ups. On these occasions, he noted that the Grand Street Apartment had been furnished. Respondent was present on these occasions to give Mr. Kalogrias access. On one such occasion [*4]Mr. Kalogrias saw Respondent's daughter in the apartment with her. Mr. Kalogrias also observed that one of the beds looked slept in and was unmade, and the apartment was untidy. He observed that there were dirty dishes in the sink. Mr. Kalogrias also observed clothing and personal items scattered around the Grand Street Apartment.

DOCUMENTARY EVIDENCE

On or about March 30, 2005, Respondent advised her employer that she had moved to the Grand Street Apartment. Specifically, Respondent received an email from a Patrick Smith, her boss, on March 29, 2005 which read "Hope the move went well. Please update Liz Connellly and Jen Young with new address and phone." Respondent replied via email the next day stating her new address was the Grand Street Apartment and her phone number was 212-473-0651, the number she installed at the Grand Street Apartment (Exhibit 15). Over two years later, Respondent changed her address with her employer back to the Subject Premises, via an email dated October 11, 2007, which read "John ...I need to change my address for them (emphasis added)" and provided the address of the Subject Premises, with no change noted as to the phone number (Exhibit 19).

Similarly, on or about December 13, 2005, Respondent filled out a form through her employer for dental insurance. On the form she listed her home address and phone number as that of the Grand Street Apartment (Exhibit 16). Two days later Respondent submitted a Flexible Spending Accounts Enrollment form to her employer again listing her address as the Grand Street Apartment and indicating the address provided was new within the last year (Exhibit 17) . One year later, Respondent continued her enrollment in the Flexible Spending Program and continued to list the Grand Street Apartment as her home address (Exhibit 18).

Respondents W2 forms from her employer for 2005 and 2006 list the Grand Street Apartment as her address. Respondents tax returns were filed for 2005 and 2006 listing the Grand Street Apartment as her address. Respondent took deductions on her tax returns for the payment of real estate taxes and mortgage payments in 2005 and 2006. On or about April 2007, Respondent amended her 2006 tax return to list the Subject Premises as her address. Respondent's accountant testified that this amendment was requested immediately after the electronic filing of the 2006 return, but that it took her a short time to process. The phone number Respondent provided on the tax returns, even as amended, was Respondent's phone number at the Grand Street Apartment.

Respondent testified that she filed her taxes in 2005 listing the Grand Street Apartment as her address, because she believed that she was obligated to do so as an owner of the Cooperative Apartment.

Respondent acknowledged that she received have financial documents at her Grand Street Apartment. Moreover, starting the Spring of 2005, Respondent changed her address of record on financial documents for the express purpose of receiving the documents at the Grand Street Apartment rather than the Subject Premises. For example, American Express statements were sent to the Subject Premises through June 2005. Respondent changed her address with American Express and statements were sent to the Grand Street Apartment from July 2005 through March 2007. Respondent's Chase Bank Accountant statements were sent to the Subject Premises from February 2005 through April 2006, and to the Grand Street Apartment from May 2006 through March 2007. Respondent's statements from Charles Schwab regarding various accounts were sent to the Subject Premises from March 2005 through June 2006, and to the Grand Street Apartment from July 2006 through March 2007. [*5]

RESPONDENTS DEFENSE

Respondent's defense to Petitioner's prima facie case is that she never used the Grand Street Apartment for living purposes. Respondent relies largely upon the testimony of witnesses, rather than documentary evidence to prove her case.

Respondent and her family testified that despite the completion of the $200,000.00 renovation no one lived in the Grand Street Apartment from 2005-2007. Respondent testified that neither she nor Darcie has ever slept one single night in the Grand Street Apartment. Respondent testified that she, RW and Darcie, shared one bedroom in the Subject Premises for the one year period that Trevor Duwyne lived there. Respondent testified that she would go to the Grand Street Apartment when it was hot out, to work occasionally, and to watch movies. The family also used the Grand Street Apartment for holiday dinners such as Passover and Thanksgiving.

Respondent testified that she used the Grand Street Apartment to work because heat exacerbated her condition, the Grand Street Apartment had air conditioning and the Subject Premises did not. Respondent testified that in 2004 and 2005 she worked daily at the offices of her employer which were located at 6th avenue and 54th Street. Respondent acknowledged that her office is air conditioned.

Respondent also cited the lack of air conditioning in the Subject Premises, as the explanation for how she came to be personally served with the Petition at the Grand Street Apartment. Respondent was personally served with the papers at the Grand Street Apartment at 7:20 pm on August 6, 2007. The same process server that served her personally at the Grand Street Apartment, attempted service one hour later at the Subject Premises at approximately 8:28 pm and found no one home. Respondent testified that the night she was personally served with the Petition, was a particularly hot evening, and that is why she was in the Grand Street Apartment at 7:30 pm. Respondent did not specify what she was doing while at the Grand Street Apartment that evening, where Darcie was, or what time she went home. Respondent had also testified that she rarely spent time at the Grand Street Apartment, after 3:30pm, because at that time Darcie came home from school.

Respondent testified that she was offered the option to have air conditioning in the Subject Premises by her landlord but did not elect to exercise the option because it was too expensive. MW had testified that he had attempted unsuccessfully to persuade Respondent to have air conditioning in the Subject Premises. MW also testified that while he wanted Respondent to have air conditioning in the Subject Premises, he did not wish to pay for it.

Respondent acknowledged that the only reason she subsequently sublet the Grand Street Apartment in 2007 was because she thought it would serve as a defense to Petitioner's claim of non-primary residence in this proceeding. Respondent also acknowledges she never attempted to sell the Grand Street Apartment, or rent it prior to her receipt of the notice of non-renewal for this proceeding.

Respondent stated the only reason she did not move into the Grand Street Apartment was because she can not afford to do so.

OTHER WITNESSES FOR RESPONDENTFor example, Stefi Preiss, Respondent's close friend of 20 years testified at the trial. Ms. Preiss, previously dated MW. Ms. Preiss acknowledged that she had been to a dinner party thrown by Respondent at the Grand Street Apartment in the Spring of 2007. She testified that Respondent had cooked at the Grand Street Apartment for the dinner party. Respondent's [*6]daughter was also in attendance. Ms. Preiss said she didn't know who lived in the Grand Street Apartment, and she didn't ask. Ms. Preiss was given a tour of the Grand Street Apartment, after the renovations were complete and described the Grand Street Apartment as "pretty nice". Ms. Preiss lives four blocks away from the Grand Street Apartment.

Ms. Preiss testified that she regularly picked up Darcie from school and spent time with her either at the Subject Premises or at her own apartment while Respondent was at work. Ms. Preiss testified that she was not paid for regularly caring for Darcie.

On cross-examination, Ms Preiss testified that she spent Passover and Thanksgiving with Respondent at the Subject Premises during the years 2005 through 2007

Similarly, Shelley Rothbart (SR) testified for Respondent. SR testified that she has known Respondent since the 1980s, and was introduced to Respondent by MW, who asked SR to testify at the trial. SR and Respondent were in each other's bridal parties. SR has known Darcie since birth, and was present in the hospital the day that Respondent gave birth to Darcie. SR has lived in East Hills, New York since the fall of 2007. SR works full time in New York City from about 7am until 6pm, has a two hour commute each way and is the mother of a six year old daughter.

On direct examination SR testified that she has visited Respondent at the Subject Premises only, and never anywhere else. However, on cross-examination she testified that she visited Respondent at the Grand Street Apartment after the renovation, but could not recall in what year that was. She also testified that there were no beds in the bedrooms at the Grand Street Apartment after the renovation, which contradicts the testimony of all other witnesses, but then recanted that testimony.

MW also testified at the trial. Mr. Woloshin is the rent-stabilized tenant of record of an apartment on the Upper East Side of Manhattan. MW testified that he occasionally spends time at the Grand Street Apartment with his girlfriend. He also testified that he takes Darcie to the Grand Street Apartment, after picking her up at school. MW testified that he has slept at the Grand Street Apartment on at least a dozen occasions. MW testified that Respondent may have slept at the Grand Street Apartment on rare occasions as well.

MW testified that he has observed Respondent's personal belongings, including clothing at the Subject Premises, on occasion and stated that Respondent would regularly spend the day at the Grand Street Apartment to cook and leave a mess when she left.

Respondent did call one disinterested witness, Marion Kass, but her testimony was of limited probative value.[FN3] Ms. Cass dated Trevor Duwyn for approximately six months from October 2006 until February 2007, while he was living at the Subject Premises. Ms. Kass testified that during said period she visited Trevor once or twice a week at the Subject Premises, [*7]always during the week never on weekends. The visits were generally in the evening between 7pm and 9:30pm. Ms. Kass described the Subject Premises as cluttered and very messy. While the Court found Ms. Kass to be a very credible witness, she did not have significant interaction with Respondent, Darcie or RW, nor was she certain on the occasions she visited who from the family was present, as she testified that they stayed in the room, were quiet, and she believed that they were sleeping. Given that she was only present at the Subject Premises in a limited capacity, her testimony while credible is insufficient on its own to rebut Petitioner's prima facie case.

Respondent did not call any neighbors to testify either from the Subject Builing where she has been a tenant since the early 1990s or from the Grand Street Apartment, which she testified has been in her family for three generations.

DISCUSSION

In order to prevail upon a claim of non-primary residence, Petitioner must establish, by a

preponderance of the credible evidence, that Respondent has failed to use the Subject Premises for actual living purposes, and that Respondent lacks a strong, continuing physical connection with the premises (Toa Construction Co. Inc v. Tsitsires 54 AD3d 109 [1st Dept 2008]).RSC § 2520.6(u) provides that while no single factor is controlling, the determination may be based on consideration of : 1) Whether the tenant lists another address on tax returns, motor vehicle registrations, drivers license or any other documents filed with public agencies; and 2)Whether the tenant uses another address for voting purposes; and 3) whether the tenant has spent over 183 days in the premises in the preceding calendar year; and 4) whether the premises have been sublet.

In this proceeding, Respondent listed the Grand Street Apartment on her tax returns and with her employers for the relevant time period. Respondent used an address other than the Subject Premises for most financial documents. Respondent rented at least a portion of the Subject Premises to Trevor Duwyn, an eighteen year old boy, whom she had never met before, pursuant to a written agreement that required he make payments in cash. The Subject Premises was occupied by him for at least one year pursuant to that agreement.

In addition, Respondent was the sole proprietary lessee for the Grand Street Apartment. Respondent renovated it, paid maintenance, obtained utilities in her name and paid for them, and paid the mortgage for the Grand Street Apartment. Respondent admits that no one else lived in the Grand Street Apartment during the relevant period, that she was consistently absent from the Subject Premises on weekends during the relevant period, and acknowledges regularly occupying the Grand Street Apartment, but submits this occupancy was not for living purposes.

In specifically excluding housing accommodations not used as the tenant's primary residence from the protections of rent stabilization "...the Legislature has made clear its intention that regulatory protection should not be available where the tenant's claim to the subject premises is based on less than the need for a place to call home. This intent is entirely consonant with the public policy sought to be advanced, which is to promote the availability of affordable housing units. ...Public policy is not advanced by permitting housing units to be held, partly or wholly unutilized...( Park South Associates v. Mason, 123 Misc 2d 750, 753 affd 126 Misc 2d 945 )".

"A tenant of a stabilized apartment who maintains a primary residence elsewhere, and also seeks to retain the stabilized apartment for convenience or considerations of personal gain, is not one who is a victim of the housing crisis but may rather be said to be a contributing and exacerbating factor in the continuation of the critical shortage of affordable apartments (Briar Hill Apartments Co. v. Tepperman 165 AD2d 519, 523 [1st Dept, 1991] quoting Cier Industries Co. v Hessen [*8]136 AD2d 145, 150)".

In the case at bar, the Court can not credit Respondent's testimony regarding her use of the Subject Premises and her use of the Grand Street Apartment. The Court specifically does not credit her testimony that she spent so much money to renovate an apartment, which she owns, yet never used for actual living purposes or for any purpose other than occasional family holidays or as an alternate place to do some work. Respondent's claim that she suffered from a debilitating physical condition, exacerbated by heat, yet refused to sleep in her beautiful, newly renovated, fully furnished, unoccupied apartment is not credible.

Neither does the Court find credible the argument that her address of record was changed on her documents because she is in some manner incompetent to handle her bills. Besides the lack of any medical testimony to support such a claim, and a longstanding career that suggests no such incompetency, the argument given the facts herein does not make sense. One would presume that if the change in address for official documents was to enable MW or RW to pay the bills, the accounts would be mailed to the address where they lived, rather than an empty unoccupied apartment. Similarly, Respondent's testimony that she did not exercise an option to install air conditioning in the Subject Premises, because of the costs associated with installation, although the heat severely exacerbated what she described as a painful and debilitating condition, defies credibility, given her willingness to spent hundreds of thousands of dollars to renovate an apartment she occasionally occupies.

The Court finds that Petitioner has established by a preponderance of the evidence that Respondent did not occupy the Subject Premises as her primary residence for the two year period prior to the service of the predicate notice herein. Respondent, relying on 300 E 34th St. Co. v. Habeeb 248 AD2d 50) argued that the Petitioner's prima facie case, based entirely on documentary evidence and Respondent's admissions, had been sufficiently rebutted by a preponderance of credible personal testimony, but the Court disagrees. Respondent, MW, and RW provided no satisfactory explanation of the issues regarding Respondent's claimed use of the Subject Premises and the Grand Street Apartment (Carmine Ltd v. Gordon 41 AD3d 196 [1st Dept, 2007]).

In addition, none of these witnesses can be considered disinterested parties. The other witnesses called by Respondent were primarily close family friends.

For example, Stefi Preiss has known the Woloshin Family for twenty years, and had previously dated MW. Ms. Preiss' testimony was insufficient to rebut the documentary evidence as to Respondent's primary residence. Her testimony regarding time spent with Darcie at the Subject Premises, addressed occasions when Respondent was admittedly not present in the Subject Premises. The dates she testified to on direct examination were very general. Ms. Preiss also clearly wanted to help the Woloshin Family by testifying. Ms. Preiss stated that she was advised that Respondent had been accused of having two apartments in this proceeding, and that Respondent was not allowed to have two apartments, and that the "whole family" was at risk of losing their Stuyvesant Town apartment.

Finally, Ms. Preiss' testimony on cross-examination regarding holidays spent at the Subject Premises with the Woloshin Family directly contradicts the testimony of Respondent, MW and RW who all testified that during this period holiday dinners were spent at the Grand Street Apartment. Either Ms. Preiss was wrong about the dates, or she was not truthful, in either case this and other discrepancies in her testimony render her testimony of limited reliability and probative value. [*9]

Similarly, the testimony of SR was not particularly probative. SR mostly sees Respondent on the weekends, and given that SR spends her weekends in the Hamptons and Respondent spends her weekends in New Jersey, SR does not have much first hand knowledge regarding the nature of Respondent's use of the Subject Premises and the Grand Street Apartment. Additionally, the Court found that SR contradicted herself in her testimony and was evasive on cross-examination.

MW acted more like a party in this proceeding than a witness. MW appeared for the initial Court date, entered a stipulation on behalf of Respondent regarding discovery, and lined up nearly all the witnesses who testified for Respondent. The Court did not find MW's testimony of significant probative value in the defense presented by Respondent. To some extent, his testimony contradicted Respondent's, who testified with certainty that she never spent a single night at the Grand Street Apartment, kept no personal belongings there and did not acknowledge that Darcie spent time there on a regular basis after school. MW also was not a credible witness.

Weighing the strong documentary evidence presented by Petitioner in this proceeding, against the Court's assessment of the credibility and probative value of the testimony of the witnesses presented by Respondent, the Court finds that Respondent's defenses fail.

Evaluated as a whole, the preponderance of credible evidence at trial establishes that Respondent's use of the Subject Premises is based on something less than the need to call the apartment her home. She failed to rebut Petitioner's documentary evidence and show that she actually required and actively used the Subject Premises for living purposes (Sommer v. Turkel 137 Misc 2d 7 [App Term, 1987]).CONCLUSION

Based on the foregoing, the Court awards Petitioner a final judgment of possession as

against Nadine Woloshin and Rosilyn Woloshin sued herein as "Jane Doe". The warrant of eviction shall issue forthwith, execution of the warrant is stayed through and including December 31, 2009, to afford Respondents an opportunity to vacate, provided that use and occupancy is paid through and including said date.

This constitutes the decision and order of this Court.

Dated: New York, New York

July 28, 2009

Sabrina B. Kraus, JHC

Footnotes

Footnote 1: 1. RW and her husband Leon Woloshin live at 23 Berkeley Terrace Livingston, New Jersey, 07038. Leon Woloshin did not testify at the trial.

Footnote 2: Although named as a party herein, Mr. Duwyn neither appeared in this proceeding nor testified at trial.

Footnote 3: Respondent considered but did not call Darcie as a witness. Darcie's testimony, particularly in light of the claim that she shared one bedroom with Respondent and RW, while the renovated Grand Street Apartment remained vacant and unused blocks away, would have perhaps been compelling. Courts have drawn a negative inference from a tenant's failure to call a teenage child to testify on such issues (Carmine Ltd v. Gordon, supra). However, as Petitioner's counsel did not request that the Court draw such an inference, and the Court did not sua sponte raise the issue prior to the close of the trial, the Court draws no such inference (People v. Gonzalez, 68 NY2d 424).