ACP 150 W. End Ave. Assoc., L.P. v Greene
Annotate this CaseDecided on March 23, 2007
Civil Court of the City of New York, New York County
ACP 150 West End Avenue Associates, L.P., Petitioner,
against
Laura Greene, Respondent.
L&T 74287/05
Belkin Burden Wenig & Goldman, LLP, New York City (David M. Skaller of counsel), for petitioner.
Donald Eng, New York City, for respondent.
Gerald Lebovits, J.
I. Introduction
In this nonprimary-residence-holdover proceeding, petitioner claims that during the Golub period — from February 1, 2003, until February 1, 2005 — respondent did not occupy her rent-stabilized West End Avenue apartment as her primary residence. Petitioner argues that respondent lived instead in a house on Greenlawn Avenue in Cleveland, Ohio.
In this relatively close case, the court finds that petitioner has not met its burden to prove by a preponderance of the evidence that respondent did not occupy the subject apartment as her primary residence during the Golub period. The evidence adduced at trial demonstrates more likely than not that respondent occupied her New York apartment as her primary residence and that she used the Cleveland house merely for vacations, family functions, and business.
II. The Law
Under Rent Stabilization Code (RSC) (9 NYCRR) § 2520.11(k), an apartment is exempt from rent-stabilization coverage if it is not occupied as the tenant's primary residence during the Golub period, as determined by a court of competent jurisdiction. As the courts have held, "[p]rimary residence is an ongoing, substantial, physical nexus with the [stabilized] premises for actual living purposes.'" (E. End Temple v Silverman, 199 AD2d 94, 94 [1st Dept 1993, mem], quoting Emay Props. Corp. v Norton, 136 Misc 2d 127, 129 [App Term, 1st Dept 1987, per curiam] [alteration in E. End Temple].) [*2]
To prevail in a nonprimary-residence proceeding, a landlord must establish by a preponderance that during the Golub period, the tenant did not occupy the subject apartment as the tenant's primary residence. (Glenbriar Co. v Lipsman, 5 NY3d 388, 392 [2005].) The tenant may rebut the landlord's proof to establish "a substantial physical nexus to the apartment." (Id. at 393, citing Draper v Georgia Props., 94 NY2d 809, 811 [1999, mem].) In terms of the burden of proof, "proof sufficient to make a prima facie showing of nonprimary residence shifts the burden of going forward to the tenant, [but] the ultimate burden of persuasion remains on the landlord seeking eviction on the basis of nonprimary residence." (Carmine Ltd. v Gordon, 2005 NY Slip Op 51763[U], *1, 2005 WL 2850928, at *1, 2005 NY Misc LEXIS 2416, at *1 [App Term, 1st Dept, Oct. 31, 2005, per curiam], citing Emel Realty Corp. v Carey, 188 Misc 2d 280, 282-283 [App Term, 1st Dept 2001, per curiam], affd 288 AD2d 163 [1st Dept 2001, mem]; accord Patchin Place, LLC v Fox, 2004 NY Slip Op 50327[U], *1, 2004 WL 906576, at *1, 2004 NY Misc LEXIS 467, at *1 [App Term, 1st Dept, Apr. 16, 2004, per curiam].)
Primary or nonprimary residence may be established " by objective, empirical evidence.'" (Sommer v Ann Turkel, Inc., 137 Misc 2d 7, 10 [App Term, 1st Dept 1987, per curiam], quoting Emay Props., 136 Misc 2d at 129.)
Under RSC § 2520.6 (u), several factors, none dispositive, may be considered to determine whether an apartment is a tenant's primary residence. (See e.g. Glenbriar, 5 NY3d at 392; Chelsmore Apts. v Garcia, 189 Misc 2d 542, 543-544 [Hous Part, Civ Ct, NY County 2001].) These factors include (1) the tenant's use or non-use of an address other than the address of the subject apartment on a tax return, motor-vehicle registration, driver's license, or other publicly filed document; (2) the tenant's use or non-use of an address other than the address of the subject apartment as a voting address; (3) whether the tenant lived in the subject apartment for fewer than 183 days in a calendar year; and (4) whether the tenant subleased the apartment. (RSC § 2520.6 [u] [1], [2], [3], [4].)
Courts have also considered factors not included in § 2520.6 (u). For example, a court may examine the tenant's entire tenancy history in the stabilized apartment to ascertain primary residence. (See 615 Co. v Mikeska, 75 NY2d 987, 988 [1990, mem].) A tenant's Golub-period telephone and other utility bills that show how often the tenant used utilities in the apartment is probative of whether the tenant had the requisite physical nexus to the apartment. (See Janco Realty Corp. v Lee, NYLJ, July 16, 1987, at 11, col 1 [App Term, 1st Dept, per curiam].) Testimony from neighbors and building employees about the tenant's absence from or presence in the rent-stabilized apartment is yet another factor. (See Harran Holding Corp. v Fowler, NYLJ, Apr. 28, 1987, at 5, col 4 [App Term, 1st Dept, per curiam].) The inquiry is fact-sensitive: The court must examine each piece of trial evidence.
III. Evidence at Trial
The trial was held over the course of four days: November 16, 2006, December 7, 2006, January 29, 2007, and February 14, 2007. [*3]
The parties stipulated to several facts by notice to admit: Respondent owns a house located at 10801 Greenlawn Avenue, Cleveland, Ohio; respondent receives gas, telephone, and power bills for her Cleveland house; and respondent owns a vehicle registered in Cleveland.
At trial, petitioner advanced its theory that respondent occupies her Cleveland house rather than the subject apartment as her primary residence. Petitioner supported its theory with both documentary and testimonial evidence.
Petitioner's first witness was Therese Scanlon, the subject building's managing agent. She testified about the subject building and respondent's rent-stabilized lease. She also testified that she kept envelopes containing rent checks that respondent sent to petitioner from Cleveland. The envelopes establish that respondent sent her rent checks from Cleveland to petitioner for the following months: September and December 2003; every month in 2004 except August and September; and January and February 2005. The envelopes gave the subject apartment as the return address but are postmarked from Cleveland.
Petitioner's second witness was Maryann Reyes, a Verizon security investigator. During Reyes's testimony, the court admitted documentary evidence of respondent's telephone records for the subject apartment from June 2003 until May 2005. Reyes testified that respondent's June 2003 telephone bill reflects that respondent changed her emergency contact number to a Cleveland telephone number. The telephone bill to which Reyes referred corroborates her testimony.
Petitioner's third witness was Joanne Kunda, an experienced, licensed private investigator. Kunda testified that on January 20, 2005, while posing as a United Parcel Service (UPS) employee, she spoke to respondent by telephone at respondent's Cleveland house. Kunda explained that she tried to convince respondent that she had a package to deliver and that she had an incorrect address. Kunda testified that she asked respondent where her "primary residence" was and that respondent answered that her Cleveland house was her "primary residence." When the court asked Kunda whether she took notes during her conversation with respondent, she replied that she did but that she did not have them with her. Although Kunda did not bring her notes to court to help her recall, she was able to flawlessly rattle off respondent's Cleveland telephone number by heart. When the court asked her why she did not bring her notes to court when she knew she was going to testify about their contents, she responded that it was her practice never to bring her notes to court. Petitioner's counsel declined the court's invitation to adjourn to allow Kunda to return with her notes.
Petitioner introduced documents from the New York City Board of Elections. The documents establish that respondent was registered to vote by absentee ballot for the November 2004 election. The documents also established that respondent was registered to vote by absentee ballot for the four elections from 1998 until 2002. For the three elections following the 2004 election, none of which were during the Golub period, respondent was registered to vote by regular ballot from New York. [*4]
Respondent's defense consisted of seeking to demonstrate that although she spent time in Cleveland every month, she maintained her New York apartment as her primary residence. Respondent relied on both documentary and testimonial evidence.
Respondent was the first witness to testify on her behalf. She testified that she was born in Cincinnati, Ohio, and grew up in Cleveland. She recounted that she moved to New York to go into show business in 1964 and that she moved into the subject apartment at that time. She further testified that she appeared in two movies, "For the Love of Ivy" in 1968 and "Putney Swope" in 1969. In 1970, she appeared on "The Tonight Show" with Johnny Carson, and during the 1970s she acted in a CBS television show called "Comedy Tonight." She further testified that she has appeared in some 250 television commercials. On cross-examination, she recalled that the last time she appeared in a commercial was approximately 7 ½ years ago. She also testified on cross-examination that she still occasionally does voice-overs.
Respondent testified that during the 1970s and 1980s she would visit her parents at the Cleveland house, which they owned. She testified that in 1992, she inherited the deed to the Cleveland house from Bland Miles, her step-father. She explained that at that time her brother, a felon and drug addict, was living at the house and that he contested her deed to it. She testified that in 1994 she gained possession of the house and mortgaged it to repair it.
Since 1999, respondent testified, her Cleveland house has been used from time to time by Victor Salupo, her friend and business partner. Respondent stated that she and Salupo started a publishing company called L.G. Productions which published two books that Salupo authored. She further testified that the Cleveland house was the business's operating base and was used to store unsold books. Respondent noted that 1000 unsold copies of Salupo's second book are stored at her Cleveland house.
Respondent testified that her brother fell ill in 2003. She recalled that in late 2003, her brother tried to reconcile with her to repair their relationship, which had been strained for some time. Respondent testified that from late 2003 until her brother's death on April 4, 2005, she traveled to Cleveland to see her brother and assist in his medical matters every month because his health was deteriorating progressively.
Regarding Kunda's testimony, respondent remembered speaking to a UPS representative. She testified, however, that she spoke with a man. She recalled that she told the UPS representative that the package should be sent to the subject apartment rather than to the Cleveland house. She further testified that she did not tell the man that her Cleveland house was her primary residence.
Respondent introduced 26 telephone cards into evidence. She testified that she bought these telephone cards in New York and used them to make telephone calls from New York.
The following additional documentary evidence was admitted during respondent's direct [*5]examination: respondent's federal and New York State tax returns for 2001 through 2004, on each of which respondent entered her New York address as her address of record; her New York State driver's license, which lists the subject apartment as her home; her Golub-period bank statements from Apple Bank in New York, which also give her New York address; her New York City chapter Screen Actor's Guild membership; and her New York City chapter American Federation of Television and Radio Artists membership.
On the cross-examination of respondent, petitioner introduced into evidence her telephone records for her Cleveland address. The telephone records are from October 2002 until January 2005. Attached to the monthly telephone bills for the Cleveland address are copies of checks used to pay the monthly bills during the Golub period. Each of these checks, for an account in the name of L.G. Productions with Chase Manhattan Bank, is signed by Salupo and indicate that they are for the Cleveland telephone bills.
On cross-examination of respondent, petitioner introduced respondent's Capital One Mastercard credit-card account applications and monthly statements. The documents consist of applications for two Capital One credit cards, one from November 2000, and the other from August 2003. The monthly statements, from August 2003 until March 2005, are for the second Capital One card. The Capital One account papers give respondent's Cleveland house as her address.
During cross-examination, respondent testified that the last time she had a driver's license in Cleveland was about 40 years ago. When asked how often she visited Cleveland during the Golub period, she answered that she visited about every six weeks. After petitioner presented her with her contrary deposition testimony, she corrected herself by testifying that she visited Cleveland every four weeks rather than every six. Respondent further testified that she spent between seven and ten days in Cleveland every month during the Golub period.
On re-direct examination, respondent testified that she keeps her car in Cleveland because she needs it to get around when she is there. She explained that she registered the car in Cleveland because she needs it for use only in Cleveland. She also recalled that in 1994 she mortgaged the Cleveland house because when she tried to sell it, a realtor told her that the house, in poor condition, did not have significant sale value. She further testified that she used the mortgage finances to repair the house. Respondent testified that she stored the unsold books in Cleveland because her Cleveland house is the base of her business, Salupo has connections in Cleveland through which he was attempting to sell the books, and her New York apartment is too small to store the books.
Respondent's second witness was Victor Salupo, her long-time friend and business partner. He testified that he and respondent published two books that he authored. Salupo testified that he had appeared on the Oprah Winfrey television show four years ago. When the court asked about his recollection of his appearance on that television show, he corrected himself and stated that he had actually appeared in 1988, or 19 years ago. Salupo noted that he travels [*6]back and forth from New York to Cleveland. He testified that when he is in Cleveland, he stays at respondent's Cleveland house for about two weeks at a time. He testified that he never saw anyone stay at the Cleveland house while he was there.
Respondent's third witness was Dr. Glory Van Scott, another of respondent's long-time friends. Van Scott, a New York resident, she explained that she has been in show business for much of her career as a college professor, producer, writer, composer, and dancer. She testified that she and respondent have been friends for some 30 years and that they work together on local theater productions that she produces. She explained that respondent assists her to produce these shows in various capacities, serving as an extra set of "eyes" and helping with costumes and voices. She testified that she produces brochures for each of these shows and that on each brochure she gives respondent credit for her contributions. Respondent introduced into evidence five of these brochures; two of them were for productions during the Golub period. Of these two, the first brochure introduced was for a production at Dowling College on April 26, 2004. The second was for a "Tribute to Fred Benjamin" on April 13, 2003. Van Scott further testified that when respondent is in New York, she and respondent power-walk about three times a week every week and go to the opera together.
Respondent's fourth and last witness was Joseph Conforti, another of respondent's friends. He recalled that he has known respondent for about 30 years. He further testified that he is a member of the Screen Actor's Guild and that he has produced and directed television programs since 1972. He testified that he often gets free movie tickets and that between 2002 and 2005, he and respondent went to the movies together in New York regularly.
IV. Credibility Determinations
The court finds Reyes credible. She testified about the contents of respondent's New York telephone records. She had no reason to skew her testimony in petitioner's favor, and the documents admitted into evidence corroborate her testimony.
The court does not find Kunda credible. She testified that respondent said that her "primary residence" was the Cleveland house. It is unbelievable that Kunda would ask respondent where her "primary residence" was and that respondent, believing she was speaking to a UPS employee, would answer that her "primary residence" is in Cleveland. This language is not used colloquially, and UPS employees trying to deliver parcels do not ask people where their primary residence is: They ask where they can deliver parcels.
The court is further troubled by Kunda's testimony that she never brings her notes to court. The only reason an experienced, licensed process server like Kunda never brings notes to court is the worry that notes will expose prior inconsistent statements. Had Kunda brought her notes from that conversation to court, her testimony would have been more believable. Her testimony would have been more believable if she had produced her notes and used them to remind herself what respondent's Cleveland number is. It is peculiar that she would not have her [*7]notes in court but that she was able to recall respondent's Cleveland telephone number flawlessly and without hesitation.
The court finds respondent credible. She was earnest and lacked guile. The trial evidence corroborates much of her testimony. Although she corrected herself about how often she visited Cleveland, the court believes that her error resulted from a mistake of memory, not a malicious attempt to deceive the court.
The court must disregard Salupo's testimony. Although he testified sincerely, his memory lapses undermine the probative value of his testimony. He testified that he appeared on the Oprah Winfrey television show four years ago. When the court questioned him further, he conceded that he actually appeared 19 years ago. This sort of mistake does not show deception, but it does adversely affect the court's ability to rely on his memory. As to his testimony in response to the court's questions about never seeing another person stay at the Cleveland house while he was there, the court assumes that he believed that the question referred to persons other than respondent.
The court finds Van Scott and Conforti credible. Neither witness was evasive. Both answered the same way whether it was direct or cross-examination. Each testified to an ongoing friendship and professional relationship with respondent.
V. Findings of Fact and Conclusions of Law
Respondent occupied the subject apartment as her primary residence during the Golub period. Although this is a close case, the testimonial and documentary evidence adduced at trial support this conclusion on the balance of probabilities.
The testimony of respondent, Van Scott, and Conforti demonstrate that respondent maintains a substantial, ongoing social and professional connection with New York City and that New York City was her home during the Golub period. Respondent, whom the court finds believable, testified that she moved to New York about 40 years ago to begin a career as an actress. She has performed in numerous theatrical roles in New York City throughout her career. She continues to do voice-overs and often works with her friend Dr. Glory Van Scott, who is also involved in theater. During the Golub period, respondent helped Van Scott with two productions, the Tribute to Fred Benjamin in April 2003 and the Dowling College production in April 2004. Respondent continues to assist Van Scott in her theater productions. Van Scott further testified that she regularly spends time with respondent in New York. When respondent is in New York, they power-walk together three times a week and go to the opera together. Respondent also maintains a friendship with Joseph Conforti. Conforti, a member of the Screen Actors Guild, often gets free movie tickets and uses them when he and respondent go to the movies together. Respondent's continuous 40-year residence, maintenance of friendships and regular social activities, and ongoing professional involvements in New York show that New York was her home and that the subject apartment was her primary residence during the Golub [*8]period.
The conclusion that respondent maintains the subject apartment as her primary residence is supported by documentary evidence connecting her to New York and to the subject apartment. Respondent's documentary evidence is probative of whether she used the subject apartment as her primary residence. Respondent paid local and state taxes in New York every year. On respondent's income tax returns she entered the subject apartment as her address of record. Respondent has a New York State driver's license that lists the subject apartment as her address. Respondent's only bank account — the Apple Bank — is in New York. The account lists the subject apartment as her address. Respondent is a member of the local New York chapter of the Screen Actors Guild. Respondent is a member of the local New York chapter of the American Federation of Television and Radio Artists. Respondent is a registered New York State voter. Respondent maintains a telephone at the subject apartment. These pieces of evidence demonstrate respondent's consistent, long-term, and ongoing connection with New York and her West End Avenue apartment.
Petitioner has not persuaded the court that the more likely inference from the trial evidence is that respondent does not occupy the subject apartment as her primary residence. In making its argument that respondent really lived in Cleveland during the Golub period, petitioner points to evidence about respondent's Cleveland house, her credit card listing her Cleveland house as her address, her Cleveland business, her ownership of a vehicle that she registered and keeps in Cleveland, her maintenance of a telephone at the Cleveland home, her minimal usage of her New York apartment's land-line telephone, her absentee ballot registration with the New York Board of Elections, and her mailing of her rent checks to petitioner from Cleveland. The evidence on which petitioner relies is subject to explanations that support a finding that respondent maintains the subject apartment as her primary residence. To meet its burden, petitioner must persuade the court that the more likely inference from the evidence is that respondent does not occupy the subject premises as her primary residence. Petitioner has not done so.
Respondent owns a house in Cleveland that was deeded to her through inheritance from her step-father in 1992. In 1994, respondent gained possession of the house from her brother and tried to sell it. A realtor told her that the residence did not have significant sale value because of its poor condition. Respondent then mortgaged it so that she could fix it up. When the necessary improvements were made, respondent did not recommence her earlier efforts to sell the house.
Petitioner argues that the evidence about the Cleveland house demonstrates that respondent decided to use it as her primary residence. The evidence does not support that. Respondent grew up in Cleveland and has family connections and a business there. Her credible testimony was that she used the house when she visited her sick brother every month to take care of him. She also testified believably that she used the house for her publishing business. Her reason for not selling the house after making the improvements was not that she wanted to use it as her primary residence but that she wanted to use it for vacation and business. [*9]
Respondent had two Capital One Mastercard accounts. The first began by Capital One's acceptance of her November 2000 application. This account was closed on December 22, 2003. The second account began by Capital One's acceptance of her August 2003 application. This account was closed on April 22, 2005. Respondent's Cleveland address is listed on the applications and monthly statements for these accounts.
Petitioner argues that respondent's Capital One Mastercard accounts demonstrate her use of the Cleveland house as her primary residence. This evidence is inconclusive. First, respondent maintained an Apple Bank account in New York which counterbalances her credit-card accounts. She used this account to pay her monthly rent bills and to conduct other checking activities. There is no record that respondent ever conducted banking activities in Cleveland beyond using her two Capital One credit cards. Second, respondent's Capital One credit card statements during the Golub period reflect minimal usage of those cards. In 2003, respondent made only two charges on her second Capital One credit card. In 2004, respondent made only four charges on her second Capital One credit card. In 2005, respondent made one charge during the Golub period. The sporadic and minimal use of these cards renders her maintenance of these accounts minimally probative. If, for example, the cards had been used on any consistent basis and for any consistent purpose, they might demonstrate that she was living in Cleveland. That is not the case. There is, moreover, some question about whether respondent even used the credit cards. The November 2000 application for the first Capital One credit card lists respondent's name, social security number, and date of birth. Respondent also signed the application. The e-mail address listed, however, is "victors@apk.net," undoubtedly Victor Salupo's e-mail address. In light of respondent's ongoing business with Salupo, respondent might have applied for the credit cards for Salupo's use in Cleveland.
Respondent and Salupo had a Cleveland-based publishing business called L.G. Productions that they ran from her Cleveland house. They published two books that Salupo authored. They sold 2000 of the 3000 copies of the second book. The remaining books were stored at the Cleveland house for distribution. Salupo's Cleveland connections were the means for this distribution.
Petitioner argues that respondent's use of her Cleveland house for her business shows that she was living in Cleveland. The evidence, however, shows that respondent's and Salupo's business was principally operated by and for the benefit of Salupo rather than respondent. The evidence suggests that Salupo was the prime moving force behind the business while respondent provided the necessary office space and financial assistance. Salupo authored the books. He had connections in the Cleveland area. The telephone bills for respondent's Cleveland house in Cleveland were paid for by checks Salupo signed. The November 2000 Capital One credit card account listed Salupo's e-mail address. The extent of the evidence suggesting respondent's involvement in the business is that she owned the house from which the business was operated. The evidence about the business suggests that Salupo was the one operating the business rather than respondent. Accordingly, respondent's involvement in the business does not support petitioner's argument that she lived in Cleveland rather than New York. [*10]
Respondent owns a car that she registered and keeps at her house in Cleveland. But her driver's license is from New York State, and her license gives the subject apartment as her address. Respondent testified credibly that the last time she had a driver's license in Ohio was over 40 years ago. Respondent further explained that she needs the vehicle to get around when she is in Cleveland. She does not need the vehicle in New York. She lives on Manhattan's Upper West Side, where parking is expensive, and she can easily get around with public transportation. Respondent's car registration does not show that her Cleveland house is her primary residence.
Petitioner argues that respondent's maintenance of a telephone at her Cleveland house and her sparse use of her telephone at the subject apartment show that she spent more time in Cleveland than in New York during the Golub period. The court disagrees. Having an operating telephone is customary for most residences, regardless whether the residence is one's primary residence. Considering, moreover, that respondent spent seven to ten days in Cleveland every month, that Salupo stayed at respondent's Cleveland house approximately two weeks out of every month, and that respondent used her Cleveland house as the operating base for the publishing business, the more frequent use of the Cleveland telephone is both predictable and minimally probative of whether respondent was spending more time in Cleveland than New York. That the telephone bills for the Cleveland house were paid for by checks Salupo signed and from an account in their business's name suggests, furthermore, that she was not financially responsible for the telephone and that it was for business, not her personal use.
To explain why her New York telephone bill shows so few calls emanating from her New York apartment, respondent introduced into evidence 26 telephone cards that she used to make telephone calls from New York. According to respondent, the proof that she used the cards during the Golub period is that she has so many cards that she has kept over the years.
Telephone cards are an inexpensive alternative to a monthly charge for a plan on a home or cellular phone. They are a pre-paid way to make local and long-distance telephone calls from any telephone. For example, a $5.00 card will give a caller a set number of minutes, an amount that varies depending on the location to which the call is made. Telephone cards, which are produced by private companies, give a telephone number for an automated operator. Upon calling this automated service, one is required to dial an access code that is provided on each card. Once the access code is entered and the automated operator confirms it, one dials the telephone number. The automated operator will state the number of minutes remaining for the call and will connect the caller with the number dialed. Telephone cards are cost effective. One usually gets a greater number of minutes for a lower cost than one can with most monthly plans. Also, by using the cards, one need not pay a monthly fee that might accompany a monthly plan.
Petitioner argues that respondent is lying about everything related to the telephone cards. Petitioner argues that she lied in stating she lives in New York. In attributing her light New York outgoing telephone usage to telephone cards, petitioner also argues, respondent falsely explained why her New York telephone bills show few outgoing calls. Petitioner additionally urges that [*11]respondent compounded her supposed lie by offering into evidence 26 expired cards that could not be shown to have been used during the Golub period. The expired cards from unknown times are not only irrelevant, petitioner contends, but they also confirm respondent's other lies: Why would she keep so many old, expired cards? Petitioner suggests that respondent somehow recently accumulated the cards to claim falsely that she used them instead of her New York land-line telephone and that her recent explanation is a recent fabrication.
The court disagrees with petitioner's analysis. To begin, the issue is a red herring, in part. Even if respondent lied about her telephone cards, telephone cards or their absence do not show whether someone lives in Cleveland instead of New York. One can live in New York or Cleveland and use telephone cards. In any event, the court has no reason to believe that respondent was untruthful in explaining her minimal use of the subject apartment's land-line. If respondent wanted to lie, it would have been easier to say that she makes few outgoing calls rather than to say that she makes outgoing calls, but largely by using telephone cards. Further, keeping old telephone cards is a harmless, even charming, eccentricity, by itself not susceptible to fomenting an accusation of perjury. Using telephone cards, moreover, is appropriate for people who, like respondent, have no cellular telephone. They can be used from any telephone, not only one's home land-line telephone, and telephone cards are cheaper than land lines. The convenience and price of telephone cards explain why they are so popular. One need only go to a New York deli or magazine stand to see the abundance of telephone cards available for purchase.
The evidence about respondent's voting does not show that she lived in Cleveland instead of New York. Respondent was registered to vote in New York by absentee ballot during the Golub period. During this time period, she often traveled from New York to Cleveland to visit her brother, whose illness was getting worse. Her absentee-ballot registration shows her interest in being able to vote in the November 2004 election. She was aware that her brother's illness might require her to be in Cleveland during the election, and she took the precaution of registering to vote in absentia if that happened. Her absentee-ballot registration does not, in any event, necessarily mean that she voted in absentia during that election. She was free to vote by regular ballot if she were in New York. Petitioner has not presented any evidence to suggest that she voted in absentia, and this court cannot assume she did.
Petitioner argues that respondent's mailing of rent checks from Cleveland during the Golub period proves that she resided primarily in Cleveland. The court cannot be confident of that. During the Golub period, respondent sent her rent checks for the subject apartment from Cleveland 13 times, as evidenced by Cleveland postmarks on the envelopes. The first two envelopes sent from Cleveland were in September and December 2003. In 2004, respondent sent her rent checks to petitioner from Cleveland every month except August and September. The final two envelopes respondent sent to petitioner from Cleveland were in January and February 2005. The probative value of this evidence is offset by respondent's testimony: Her brother fell ill in 2003; in late 2003, her brother reached out to reconcile with her because their relationship had been strained for a long time; her brother became increasingly ill during 2004; while her brother's condition was deteriorating, she would travel to visit him and take care of his medical [*12]matters every month; she would spend seven to ten days in Cleveland on each visit; and respondent's brother passed away in April 2005. This testimony corresponds directly to the months in which respondent sent her rent checks to petitioner from Cleveland. She was traveling to Cleveland at the latter part of every month to visit her dying brother. While she was there, she sent her rent checks to ensure that she paid her rent timely. On their face, the envelopes support this conclusion.
The envelopes also support the conclusion that respondent considered the subject apartment her primary residence. On each envelope she sent from Cleveland, she listed the subject apartment as her return address. If the post office were to return the envelopes to sender, she wanted them returned to her New York address. She knew she would get a returned envelope back faster if it were returned to the subject apartment because that was her home and primary residence. If the envelopes were returned to sender, in either New York or Cleveland, then her rent check would be late. By indicating the subject apartment as her return address, she ensured that she would get the envelope back more quickly and that she would pay her rent without significant delay. Accordingly, her use of her New York apartment as the return address on the envelopes shows that she lived in New York and maintained the subject apartment as her primary residence during the Golub period.
VI. Conclusion
The court finds — not to any certainty in this relatively close case but to a preponderance — that respondent occupied the subject New York apartment as her primary residence during the Golub period. Inconclusive is the evidence petitioner introduced to buttress its theory that respondent maintained her Cleveland house rather than the subject apartment as her primary residence. Petitioner's evidence is explainable and is as likely, if not more likely, to support a finding that respondent occupied the subject apartment as her primary residence. Given the documentary and testimonial evidence connecting respondent to the subject apartment, petitioner has not met its burden to persuade the court that respondent did not occupy the subject apartment as her primary residence during the Golub period. The petition is dismissed.
This opinion is the court's decision and order.
Dated: March 23, 2007
J.H.C.
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