156 E. 37th St. LLC v Black

[*1] 156 E. 37th St. LLC v Black 2009 NY Slip Op 52496(U) [25 Misc 3d 1239(A)] Decided on December 11, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 11, 2009
Civil Court of the City of New York, New York County

156 East 37th Street LLC, Petitioner-Landlord

against

Donald Black a/k/a Donald Black, Jr. a/k/a Oliver Donald Black, Jr. 156 East 37th Street Apt Pha New York, New York 10016, Respondent-Tenant "John Doe" and/or "Jane Doe" Respondents- Undertenants.



L & T 57431/08



JEFFREY M. GOLDMAN, ESQ.

Attorney for Petitioner

640 Fifth Avenue

New York, New York 10019

(212) 265-2171

GOLDBERG, SCUDIERI, LINDENBERG & BLOCK P.C.

Attorneys for Respondent

By: DAVID SCUDIERI, Esq.

45 West 45th Street, Suite 1401

New York, New York 10036-4602

(212) 921-1600

Sabrina B. Kraus, J.

This summary holdover proceeding was commenced by 156 EAST 37TH STREET LLC (Petitioner), and seeks to recover possession of Apartment PHA at 156 West 37TH STREET (Subject Premises), based on the allegation that DONALD BLACK (Respondent), the rent-stabilized tenant of record, does not live in the Subject Premises as his primary residence. Respondent appears by counsel, and denies the allegations of the petition.

PROCEDURAL HISTORY

Petitioner served a Golub Notice, on or about August 17, 2007, advising Respondent that his tenancy was terminated effective November 30, 2007, and would not thereafter be renewed. The Notice of Petition and Petition issued on or about February 21, 2008. Respondent filed an answer on or about May 2008.

From May through July 2008, the parties stipulated to discovery, and on October 31, 2008, the proceeding was marked off calendar, pending the completion of discovery. Respondent's deposition took place March 30, 2009.

The proceeding was restored for trial on August 4, 2009. On September 15, 2009, the proceeding was assigned to Part S for trial, and the trial commenced. The trial continued and concluded on September 23, 2009, and the court reserved decision.FINDINGS OF FACT

Petitioner is the owner in fee of the Subject Premises, pursuant to a deed dated July 25, 2002 (Exhibit 1). Respondent, is a seventy-two year old single man who has been the tenant of record of the Subject Premises for over thirty years. The Subject Premises is a three bedroom [*2]apartment, with two bathrooms, surrounded on three sides by large outdoor terraces. The Subject Premises has a wood burning fireplace in the living room, and an entrance directly through the elevator, which opens into the Subject Premises through a key.

Respondent took occupancy pursuant to a written lease agreement dated November 2, 1978, most recently renewed for a period through and including November 30, 2007 (Exhibits 2 & 3). The Premises is subject to Rent Stabilization, and the legal registered rent is $2068.38 (Exhibit 4).

Martin Ball, the Superintendent of the Subject Building between 2002 and 2007, testified for the Petitioner. From December 2005 through November 30, 2007, Mr. Ball seldom observed Respondent at the Subject Building, and estimated that he had seen Respondent in the building on four or five occasions during that period. Mr. Ball testified that he saw Respondent in the building during this period significantly less than he saw other tenants in the building, but acknowledged on cross-examination that he did not always observe tenants entering or leaving the building. Mr. Ball did no repairs in the Subject Premises, during that period of time

There are thirty-eight other apartments in the Subject Building. There is no doorman employed at the Subject Building.

The next witness for Petitioner was John Cheshire. Mr. Cheshire is employed by a company called Tenant Tracers, and was hired by Petitioner to install a video camera at the Subject Building. On or about August 31, 2007, Mr. Cheshire installed three cameras in the Subject Building, one in the elevator, one by an exit, and one in the stairway. The cameras recorded twenty-four hours a day, seven days a week, onto a time lapsed video recording deck. Each tape holds approximately five days worth of recordings.

Elizabeth Woodley, also employed by Tenant Tracers, was the next witness presented by Petitioner. Ms. Woodley is a private investigator licensed in New York State. Through Ms. Woodley's testimony, Petitioner entered into evidence a report (Exhibit 12) which summarized the contents of the videos taken from August 31, 2007 through April 24, 2008, in reference to any instances where Respondent or anyone else was seen entering or exiting the Subject Premises (Surveillance Report). Also entered into evidence were approximately forty-three tapes and DVDS with the recordings made during that same period (Exhibits 13a & 13b through 54a & b)(Tapes). The Tapes covered a period of 220 days from August 2007 through April 2008, and the Surveillance Report indicates that Respondent was observed on thirty-seven days during that period.

John Doran next testified for the Petitioner. Petitioner primarily used his testimony to play portions of the Tapes on the record, during the trial. During said viewings, it was established that the Tapes generally corresponded to the information in the Surveillance Report, subject to minor insignificant discrepancies [FN1].

The trial was adjourned from September 15, to September 23. In the interim, Petitioner made copies of all Tapes available to counsel for Respondent. The trial resumed on September [*3]23, 2009 for the continued testimony of John Duran, and continued viewing of the Tapes.

The Court finds that the Tapes were made in a reliable manner. Respondent consent to the admission of the tapes into evidence. Respondent did not seriously challenge the number of times the Surveillance Report indicated his presence at the Subject Premises, nor did Respondent offer any evidence to contradict the prolonged absences from the Subject Premises indicated by the Surveillance Report. Thus, the Court concludes that the Tapes and the Surveillance Report accurately reflect Respondent's presence at the Subject Premises during the period for which they exist.

The Tapes do not establish that the Subject Premises was being sublet, or that any individual, other than Respondent, was using the Subject Premises for living purposes. On occasions where others entered the Subject Premises, they were generally present for a short periods, and no individual was observed coming or going from the Subject Premises on a daily basis.

The parties stipulated certain documents into evidence, including: Respondent's Chase Bank Statements for the period of November 2005 through May 2008 (Exhibit 6a - 6dd); and samples of Respondents Con Edison bills for the Subject Premises for the period of June 2006 through May 2008 (Exhibit 7); and certified records produced by Con Edison, pursuant to subpoena, covering a period of November 2005 through December 2007 (Exhibit 8); and a sample of Respondent's receipts for travel on New Jersey Transit for 2006 and 2007 (Exhibit 9); and Respondent's Deposition Transcript (Exhibit 55).

The subpoenaed records produced by Con Edison show that the charge for electricity used ranged from thirteen dollars per month to twenty-five dollars per month (Exhibit 8). The bills are based on actual, rather than estimated, usage, and are paid by a direct deduction from Respondent's bank account (Exhibit 7). Respondent's average daily electrical use during the period ranged between 2 and 8 kWh (Exhibit 7).

The parties then stipulated to certain facts, including that: For the years 2005 through 2007, Respondents Federal and State Taxes all list the Subject Premises as his address; and Respondents W2 for 2008 lists the Subject Premises as his address; and Respondent received mail from the Board of Elections from 2005 through 2007 addressed to him at the Subject Premises; and Respondent's drivers' license, issued in November 2002, lists the Subject Premises as his address; and Respondent's social security documents list the Subject Premises as his address.

Petitioner rested, and Respondent made a motion for dismissal, which was denied by the court for the reasons stated on the record.

Respondent then took the stand to testify on his own behalf.

Respondent testified that he moved into the Subject Premises in 1978, and he moved in alone, and has always lived there alone. Respondent testified that he has never lived anywhere else other then the Subject Premises since he moved in 1978, that he never leased any other residential premises, and that he owns no real property.

Respondent worked as a fashion director for Macy's Home Furnishings for approximately seventeen years through 1992. Respondent then worked in a similar position for ABC Home and Carpet through approximately 1999. Respondent left that position for a job with Lillian August, in Connecticut which he testified he held through 2004.In 2004, Respondent testified that he left August Lillian, and took a job working for Due Process Stable and Golf Club located in Coltsneck, New Jersey. Respondent was hired to set up a furniture business that the owner of [*4]the club wanted to establish both on site and in nearby towns. The property is located on 166 acres, and was formerly a horse farm, prior to conversion to its current use.

While there is no lodging available on the property, there is a "cottage", where Respondent's employer maintains an apartment on the main floor, and with additional bedrooms on the second floor. Respondent states that he occasionally occupies one of the bedrooms in the cottage on the second floor. Respondent testified that the room he stays in is sparsely furnished, that he is not charged for staying in the room, and that there is no limit on the number of nights that Respondent can use the room.

Respondent states that he will sleep there once in a while, primarily in winter months when the weather is bad, but he testified he has never stayed there for more than three consecutive evenings. Respondent stated that when the weather is good, he prefers to commute rather than sleep at the cottage, because he prefers his own surroundings.Respondent's normal work hours are 7am to 5pm. In order to arrive at work by 7am Respondent states he must leave the Subject Premises at 5 am, because the commute time one way is approximately one and a half hours. Respondent arrives at his place of employment by taking a cross-town bus to Penn Station, and taking a train to Red Bank New Jersey. From Red Bank New Jersey, Respondent takes a cab to Coltsneck.

Respondent stated that the tapes do not accurately reflect the time he was at the Subject Premises, and noted in particular that he does not work on Sundays or Mondays.

Respondent has a car, a Range Rover, which he keeps in Coltsneck, and uses to go between three stores now operated by his employer. The two other locations are in Red Bank and Shrewsbury, both nearby towns in New Jersey. The car is parked on the property of Due Process Stables, outdoors, near the cottage.Respondent is not reimbursed by his employer for the work related use of his vehicle. The car is registered and insured to a location in Upstate New York. Respondent has registered the car to the Subject Premises since approximately 2004, prior to that time, Respondent kept the car in Upstate New York.

Respondent has no phone in the Subject Premises, and has not maintained a phone there since approximately 2006. Respondent has a cell phone, but no documents related to Respondent's cell phone use were offered into evidence by either party. Respondent has no cable at the Subject Premises.

Respondent testified that he often does his banking and shopping in New Jersey, because it is convenient for him. Respondent's bank records show significantly more transactions in New Jersey, than New York.Respondent uses his ATM/debit card with such regularity that it provides a fairly detailed account of his actual whereabouts.

There are some discrepancies and gaps in the evidence and testimony provided at trial that were not addressed by either party.

For example, the Con Edison records appear to show a relatively low usage, however Petitioner did not offer any testimony to accompany said records, or to indicate how the Court should interpret them. Neither party offered any testimony about electrical usage in the Subject Premises.

Similarly, Respondent testified that he stopped working for Lillian August in 2004, and commenced working for Due Process Stables as his next position. No overlap between the two positions was acknowledged either in his deposition testimony or during the trial, nor was any testimony elicited from Respondent regarding this issue on cross examination. However, Respondents bank records appear to demonstrate that he was working for both companies, at the [*5]same time, at least for a period. Specifically, through the end of 2005, Respondent was still on the payroll for Lillian August, but also receiving pay from Due Process Stables (Exhibit 6a & b).

This discrepancy was not explored by Petitioner's counsel either at the trial or during the deposition. Additionally, while the 2005 tax returns were produced during discovery they were never offered into evidence. The 2004 tax return, the only return that was offered in evidence, lists income from Lillian August as wages pursuant to a W2 form, and lists income from Due Process Stables as wages from self-employment.

Additionally, Respondent testified that he had no email account, yet appears to have an automatic deduction from his bank account to pay for AOL services ( Exhibit 6). The Court further notes that Respondent did not call a single witness to support his claim that he primarily resides in the Subject Premises.

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]).

The strongest evidence presented by Petitioner was the videotapes of the Subject

Premises, and the Con Edison records.

As noted above, the Surveillance Report suggests that Respondent was only sleeping in

the Subject Premises on 37 out of 220 days taped, or roughly 17% of the time, and was not seriously challenged by Respondent through any detailed testimony. Respondent did not provide the Court with any kind of evidence to prove that he was present at the Subject Premises, during the periods where the Tapes establish his absence. Respondent did not suggest that there was any reason that his occupancy of the Subject Premises would have been less frequent during the time period in question. Respondent's only "challenge" to said evidence was conclusory testimony that he didn't believe that the tapes accurately reflected his occupancy of the Subject Premises during that period.

Additionally, the dates the Surveillance Report indicates Respondent is at the Subject

Premises in occupancy, correspond to the dates where his banking records show transactions in New York City. For example of the months covered by the Surveillance Report, Respondent slept in the Subject Premises for ten nights in November and December 2007. This was the greatest amount of time he slept in the Subject Premises for the period covered. Most other months he slept in the Subject Premises three or four nights per month.

Respondents ATM records for November 2007, show numerous transactions in New

York City, on the dates the Tapes recorded Respondent at the Subject Premises. Respondent's bank records show almost no transactions in New York City in October 2007(Exhibit 6w & x), and the Surveillance Report indicates Respondent only slept at the Subject Premises one night during that month. Similarly, in September 2007, the Surveillance Report shows that Respondent only spent three nights in the Subject Premises, and Respondent's banking records show almost daily transactions on all other days in that month in New Jersey (Exhibit 6v).

The Surveillance Report indicates Respondent came into the Subject Premises on

September 7, 2007 and August 31, 2007, late in the evening. Receipts for the purchase of tickets by Respondent from New Jersey to New York correspond with this evidence (Exhibit 9) and show that on September 7, 2007, he purchased a ticket from Red Bank New Jersey to New York [*6]at 5:55 pm, and the Surveillance Report indicates he arrived at the Subject Premises at 11:00pm. Similarly, on August 31, 2007, Respondent purchased a ticket from Red Bank to New York at 6:34 pm and the Surveillance Report indicates he arrived at the Subject Premises at 11:25 pm. This also corresponds to his banking records, which show that Respondent had dinner in New York on September 7, 2007, and took money from the atm on September 1, 2007.

This evidence was further buttressed by the Con Edison records. While Petitioner

failed to present testimony to the Court as to how the records should be interpreted, the records do indicate relatively low consummation of electricity on their face. Low usage of electricity during the relevant period has consistently been held to be persuasive evidence in determining that a premises are not being used by the tenant as a primary residence (Briar Hill Apartments Co. v. Teperman, 165 AD2d 519 [1st Dept, 1991][proof of low electrical consumption supports finding of nonprimary residence unless credibly explained by tenant]; Carmine Limited v. Gordon, 41 AD3d 196 [1st Dept, 2007])[negligible use of electricity not satisfactorily explained by Respondent supports a finding of non-primary residence]).

In Carmine Ltd the trial court dismissed the petition after trial finding that Petitioner had

failed to establish non-primary residency. The respondent in that case had been the tenant of record for twenty-five years. The Appellate Term affirmed the decision, with a dissenting memorandum issued by Justice McCooe (9 Misc 3d 138[A], 2005 WL 2850928). Justice McCooe's dissent was in part based on the trial court's failure "to give the proper weight to the undisputed documentary evidence, particularly the lack of electric usage at the apartment (Id )." Justice McCooe noted that there were four months where no electricity was used, and another seven months where the electricity used ranged from 10 kWhs per month to a high of 70 kWhs per month.[FN2] The decision further noted that the testimony of the Con Edison employee was that a refrigerator could not operate on 70 kWhs per month, and that a hundred watt bulb would use about 28 kWhs per month if left on for eight hours a day (Id).

The Appellate Division reversed both the trial court and the Appellate Term, in large

part based on the low electrical usage (41 AD3d 196, 197). The premises in Carmine Ltd was a 450 Square Foot Apartment, in the case at bar, the Subject Premises is a three bedroom penthouse. The usage that the Appellate Division found persuasive evidence of non-primary residence in a studio apartment, is equally if not more persuasive in the case at bar, given that the Subject Premises is significantly large than the premises at issue in Carmine Ltd.

Respondent's bills from Con Edison for the Subject Premises ( Exhibit 7), include nine

different monthly statements reflecting actual monthly usage of electricity at the Subject Premises, during the relevant period. All, but twoof these months, reflect usage over thirty days in the range of 57 kWh to 94 kWh. January and February 2007 showed a significantly higher usage of 120 kWh and 216 kWh respectively.

Exhibit 8, the subpoenaed records from Con Edison, show that this low level of

consumption was consistent throughout the two year period from November 2005 through December 2007. Out of this two year period the usage was only over 100 kWh in five months, from December 2005 through March 2006, and then again, in January and February 2007. The [*7]rest of the months show extremely low consumption, inconsistent with the use of the Subject Premises for everyday living purposes. Respondent has provided no explanation of the low electric consumption.

In Tabak v. Steele (8 Misc 3d 78 [App Term, 1st Dept,2005]) the trial court entered a

judgement for tenant after trial. The Appellate Term affirmed, finding that the testimony of the tenant was sufficient to preclude the landlord's recovery of the Subject Premises. In that proceeding, the tenant had put into evidence her Con Edison bills, and the landlord did not put any subpoenaed documents from Con Edison. The Appellate Term noted that although a Con Edison representative did testify at the trial "... the witness was asked no questions on direct examination concerning the level of electrical usage in the subject apartment..." and that the landlord did not emphasize the issue of low utility usage on appeal which the Appellate Term deemed " ... an appropriate acknowledgment that the subject is not probative' of the primary residence issue framed on appeal (Id at 80)"

Justice Suarez' dissent, which the Appellate Division subsequently adopted as its

decision in reversing both the trial court and the Appellate Term (38 AD3d 244), held that Petitioner had met its burden in establishing non-primary residence. The dissent noted, inter alia, that the phone bills and electric bills produced by the tenant reflected only minimal usage (Tabak at 82).

Petitioner did not establish an alternate primary residence for that Respondent lives, and

the Court does not find that Respondent primarily resides in the Cottage he uses in conjunction with his employment. So where is Respondent living? The Court can not answer this question based on the evidence in the record, and can only conclude that Respondent is omitting information about his whereabouts.

For example, Respondent testified that he usually only stays at his place of employment

in bad weather, but the evidence suggests it is in the winter months, when the weather is the worst, that Respondent is at the Subject Premises most frequently, with electrical usage peeking December 2005 and January 2006 and December 2006 and January 2007. Respondent offered no explanation as to where he is sleeping on other occasions, and denied regularly staying anywhere else.

The Court does not credit the testimony that Respondent provided at trial, and finds that

Respondent failed to adequately rebut the evidence presented by Petitioner. Respondent's conclusory denial that he lived anywhere else, and vague testimony that he couldn't recall how much time he was at the Subject Premises during the relevant period are not credible in the face of the objective evidence provided by Petitioner.

The Court can only collude that where Respondent spends his time, and the reasons for

the prolonged absences from the Subject Premises, are not issues which Respondent wished to testify about or provide information on.

The fact that the record does not establish an alternate residence for Respondent does

not preclude Petitioner prevailing on its claim of non primary residence. Petitioner is not obligated to prove where Respondent did live, only that his connection to the Subject Premises was insufficient to constitute it continuing as his primary residence ( Toa Construction Co. Inc. v. Tsitsires 54 AD3d 109 [2008][proof of nonprimary residence does not require proof that tenant maintains alternative primary residence]; Rocky 116 LLC v. Weston 195 Misc 2d 363 [App Term, 1st Dept, 2003]; Oakridge Center LLC v. Anthopoulis 21 Misc 3d 132[A][App Term, 1st Dept, 2008] ). [*8]

The lack of a credible explanation by Respondent of the objective empirical evidence

provided by Petitioner regarding underutilization of the Subject Premises, requires that the Court find in favor of Petitioner, notwithstanding the Court's sympathy towards the Respondent who is seventy-two years old and has been the tenant of the Subject Premises for over thirty years.

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)".

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 his home (Sommer v. Turkel 137 Misc 2d 7 [App Term, 1987]).



CONCLUSION

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

possession. The warrant of eviction shall issue forthwith, execution of the warrant shall be stayed through March 31, 2010.

This constitutes the decision and order of this Court.

Dated: New York, New York

December 11, 2009

Sabrina B. Kraus, JHC

TO:

Footnotes

Footnote 1: For example on September 8, 2007, Respondent was recorded on the Tapes at 7:11 pm, but that is not reflected in the Surveillance Report. However, the Surveillance Report did indicate his presence on other times that day, as the significance of the evidence is the number of days he was at the Subject Premises, and not how many times on a particular the day, the Tapes show him coming or going, the discrepancy is insignificant.

Footnote 2: The decision itself uses "kws" rather than "kWh". Kws typically refers to kilowatts and kWh to kilowatt hours. Electricty bills are usually provided in in KWh. Based on the foregoing the Court presumes that kws was a typographical error and that the decision meant to refer to kWh.