ST Owner LP v Nee-Chan

[*1] ST Owner LP v Nee-Chan 2007 NY Slip Op 51547(U) [16 Misc 3d 1122(A)] Decided on August 6, 2007 Civil Court Of The City Of New York, New York County Cohen, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through August 17, 2007; it will not be published in the printed Official Reports.

Decided on August 6, 2007
Civil Court of the City of New York, New York County

ST Owner LP, Petitioner-Landlord,

against

Betty Nee-Chan, Respondent-Tenant, BENJAMIN CHAN, DAVID CHOI, "JOHN DOE" and "JANE DOE," Respondents-Undertenants.



L&T 076884/2005



Belkin Burden Wenig & Goldman, LLP
Attorneys for Petitioner
270 Madison Avenue
New York, New York 10016

By: David M. Skaller Esq.
Agins, Siegel & Reiner, LLP
Attorneys for Respondents
386 Park Avenue South
New York, New York 10016
By: Richard H. Del Valle, Esq.

David B. Cohen, J.

Petitioner ST Owner LP commenced this holdover proceeding against respondent Betty Nee-Chan on the grounds that she did not maintain her New York City apartment as her primary residence. Respondent disputes the claim and asserts, in the alternative, that if she did not maintain the subject premises as her primary residence, her son is entitled to a renewal lease in his name for the apartment under the Rent Stabilization Code.

Questions Presented

Did respondent maintain her rent-stabilized apartment as her primary residence?

Did respondent permanently vacate the apartment so as to allow her son to obtain succession rights to the apartment?

Findings of Fact

Respondent Betty Nee-Chan signed a lease with the landlord, Metropolitan Life Insurance Company, for 453 East 14th Street, Apartment #9C, New York, New York 10009 (the "apartment") on June 4, 1987.[FN1] Respondent's apartment lease was most recently extended by a written agreement dated January 31, 2003 for a period of two years, commencing on June 1, 2003 and ending May 31, [*2]2005. Respondent owns a cooperative apartment located at 380 Mountain Road, Apartment #1404, Union City, New Jersey (the "co-op") that she purchased with her husband, Mohammed Abdalal Mohammed, in 1998. A Notice of Non-Renewal for the apartment was served upon respondent on March 1, 2005 on the theory that she no longer used the apartment as her primary residence.

Respondent's Testimony

Respondent testified that she married Mr. Mohammed, a New Jersey resident, in 1995 and in that year they signed a lease to rent the co-op in both of their names. Mr. Mohammed lived in the co-op full time, while respondent stayed in the apartment five nights per week. They purchased the co-op in 1998 and held a mortgage in both of their names. Mr. Mohammed lived in Egypt from at least March 2003 through December 2005, except September 2005. According to respondent's Response to Notice to Admit,

Mr. Mohammed returned to New Jersey approximately six times for two to three weeks at a time during this period. He stayed in the co-op while respondent remained in the apartment during those visits.

Respondent works Tuesday through Saturday, from 6:00 A.M. until 3:00 P.M., as a waitress for the Grand Hyatt Hotel located at Grand Central Terminal in New York City. She generally stays overnight in the apartment from Monday afternoon until Saturday morning and then goes to the co-op from Saturday afternoon until Monday. She testified that a family friend, David Choi, had a key to the New York City apartment and stayed there on weekends. Although a telephone in the New York apartment is still active, no telephones were actually connected to the landline in the apartment from at least January 1, 2003 until December 15, 2005. Respondent discontinued long distance telephone service at the apartment in or about 2000 or 2001.

Documentary Evidence

Respondent's 2001, 2002, and 2003 Federal income tax returns and her W-2 forms from the time she purchased the co-op in 1998 list respondent's address as the New Jersey co-op. She filed Nonresident and Part-year Resident New York State Income Tax Returns in 2001, 2002 and 2003, which all listed the co-op as her address. The 2003 tax returns were filed individually because Mr. Mohammed was in Egypt.

Respondent received statements from three major credit card companies and bills for telephone and cable television service in her name at the New Jersey co-op. She was the only person who used any of those credit cards for the period of January 1, 2003 until at least December 12, 2005. Respondent received bank statements for her joint and individual Citibank savings and checking accounts at the co-op. Also, her Blue Cross/Blue Shield health insurance information was sent to the co-op and the co-op address and phone number was listed as her contact information at work. In addition, she received property tax bills at the co-op for a Florida property that she owned.

Telephone records from AT&T for the co-op for the period of December 2004- March 2005 indicate outgoing calls made nearly every day, including Tuesday through Friday, at various times. Respondent explained that her niece from Connecticut had keys to the co-op and may have been there and her sister from Westchester spends time in the co-op. Neither her sister nor her niece told respondent when they were in the New Jersey co-op.

Respondent is and has been a registered voter from the apartment in New York City since 1988, serves jury duty in New York, regularly renews her learner's permit in New York, and receives account statements from the Apple Bank for Savings and Emigrant Savings Bank at the apartment. She also receives Time Warner cable bills and Verizon telephone bills at the apartment. [*3]Respondent testified that her family and social life are centered in New York and that she keeps family photos and mementos in the apartment.

Conclusions of Law

I. Primary Residence

A primary residence is defined as an "ongoing, substantial, physical nexus with the . . . premises for actual living purposes" (E. End Temple v Silverman, 199 AD2d 94, 94 [1st Dept 1993]; Emay Props. Corp. v Norton, 136 Misc 2d 127, 129 [App Term, 1st Dept 1987]; ACP 150 W. End Ave. Assoc., L.P. v Greene, 15 Misc 3d 1112[A], 2007 NY Slip Op 50589[U], *1 [Civ Ct, NY County 2007]). Section 2520.6 (u) of the Rent Stabilization Code ("RSC") lists several factors that courts may consider when determining whether the tenant has maintained a housing accommodation as a primary residence, though no single factor is dispositive:

"(1) Specification by an occupant of an address other than such housing accommodation as a place of residence on any tax return, motor vehicle registration, driver's license or other document filed with a public agency; (2) Use by an occupant of an address other than such housing accommodation as a voting address; (3) Occupancy of the housing accommodation for an aggregate of less than 183 days in the most recent calendar year, except for temporary periods of relocation pursuant to Section 2523.5(b)(2) of [9 NYCRR]; (4) Subletting of the housing accommodation." (RSC § 2520.6 [u]).

In addition, courts may look at evidentiary material, such as title documents, school, telephone, bank, credit, motor vehicle and utility records, and the use of the premises for receipt of mail (Cox v J.D. Realty Assoc., 217 AD2d 179, 185 [1st Dept 1995]). Another important factor that courts examine is the amount of time that a tenant spends at the subject premises (Hart Future Co. v Rose, 28 HCR 305A [Civ Ct, NY County 2000]).

In a non-primary residence holdover proceeding, the petitioner has the burden to show "by a fair preponderance of the credible evidence that the tenant does not maintain an ongoing and substantial physical nexus with the subject premises for actual living purposes" (750 Tenth Ave. Assoc., Inc. v Vallant, 20 HCR 201A [Civ Ct, NY County 1992]; see also Hart, 28 HCR 305A). Once the petitioner has established its prima facie case, the respondent must rebut petitioner's case by presenting evidence that shows that the tenant does maintain its primary residence in the rent-stabilized apartment (Harran Holding Corp. v Fowler, NYLJ, Apr. 28, 1987, at 5, col 4 [App Term, 1st Dept]). Petitioner has satisfied its burden of proof that respondent does not maintain the New York City apartment as her primary residence and respondent has not rebutted this proof.

The cumulative weight of petitioner's evidence demonstrates that the respondent maintained her primary residence at the co-op. The tax returns listing the co-op address support the determination that she maintained a substantial and ongoing nexus with the co-op and not the apartment. In addition, she received credit card and bank account statements in New Jersey and the utility bills sent to the co-op were all addressed in her name. Her contact information for work listed her New Jersey address and she had all health insurance information sent to the co-op as well. Finally, the cancelled long distance service and disconnected telephone at the apartment suggest that she did not maintain it as her primary residence.

Respondent did not successfully rebut petitioner's case to establish a substantial ongoing, [*4]physical nexus with the apartment for actual living purposes.[FN2] Respondent's 2004 Federal and State tax returns did list her New York City apartment address, but were filed only after the petitioner served the Notice of Non-Renewal. The Apple Bank and Emigrant Savings Bank statements received at the apartment did not require any on-going monitoring or participation from respondent. Respondent shared the Emigrant Bank CD account with her brother for over 10 years and she only received statements when the CD matured. The Apple Bank money market account was shared with respondent's mother and was used only to pay for rent and other costs associated with the New York City apartment. Each Apple Bank account statement in evidence shows only one check drawn during the respective transaction period. Since the Apple Bank account was only used for apartment-related expenses, a reasonable inference may be made that her Citibank accounts were used for everyday expenses and required far more participation and monitoring on respondent's behalf.

Respondent stated that the 2004 W-2 form listed the co-op's address because that was the address she provided to her employer for her contact information. She also gave her employer her cell phone number. If, as she claimed, she only spent approximately two days a week in the co-op, including Saturday evening and Sunday, her employer would have a significantly better chance of contacting her in the New York City apartment.

While respondent maintained that she only stayed in the co-op from Saturday until Monday, the December 22, 2004-March 9, 2005 AT&T telephone records for the co-op, covering a period during which Mr. Mohammed lived entirely in Egypt, show outgoing calls made nearly every day. Nearly all of the phone calls that were made during the week correspond to times before respondent would have left for work or after she would have returned home from work. Respondent claimed she could not remember if she made any of the phone calls and she did not know when her sister and niece visited the co-op. In fact, she contradicted her earlier testimony, wherein she stated that there was nobody in the co-op all week. This court finds it highly unlikely that her niece and sister came from Connecticut and Westchester, respectively, and placed those calls and does not credit her testimony. Although respondent claimed that a friend from Paris also visited her, such a visit cannot explain the overwhelming number of phone calls made at the co-op. The telephone records suggest that respondent spent significantly more time in New Jersey than she claims and provide evidence of her substantial and ongoing nexus with the co-op for actual living purposes as opposed to the New York City apartment.

Respondent testified that she did not stay in the co-op during the week because a bus did not leave Union City early enough for her to arrive at work on time at the Grand Hyatt Hotel. However, the bus schedule in evidence shows that a bus leaving from Union City arrived at the Port Authority at 5:30 A.M. From the Port Authority, a short subway ride would allow respondent arrive at work by 6:00 A.M. The accessibility of

her commute to work from the co-op suggests that she was equally likely to maintain the co-op as her primary residence as the New York City apartment. The court is also skeptical of respondent's claim that she stayed at the apartment with her son and a family friend, who stayed on weekends, when she also owned a co-op in a building with many amenities, including a pool, fitness facility, parking facility and central air conditioning. Accordingly, the court cannot credit respondent's testimony that she lived in the New York City apartment as her primary residence. Petitioner has [*5]met its burden of proof, which has not been rebutted by respondent, that the New York City apartment is not respondent's primary residence.

II. Succession Rights

Section 2523.5 (b) (1) of the Rent Stabilization Code provides that:

"[I]f an offer [to renew the lease] is made to the tenant and such person has permanently vacated the housing accommodation, any member of such tenant's family . . . who has resided with the tenant in the housing accommodation as a primary residence for a period of no less than two (2) years . . . immediately prior to the permanent vacating of the housing accommodation by the tenant . . . shall be entitled to be named as a tenant on the renewal lease." (RSC § 2523.5 [b] [1]).

"Succession is permissible only where the prime tenant vacates the apartment voluntarily and where the subject apartment is the primary residence of the prime tenant" (Claridge Gardens, Inc. v Menotti, 160 AD2d 544, 545 [1st Dept 1990]; see Herzog v Joy, 74 AD2d 372, 373 [1st Dept 1980]). Neither circumstance exists here.

A determination that a housing accommodation is not the tenant's primary residence does not necessarily mean that the tenant has permanently vacated (see 72A Realty Assocs. v Kutno, 15 Misc 3d 100, 102 [App Term, 1st Dept 2007], lv denied NYLJ, July 18, 2007, at 25, col 1 [App Term, 1st Dept][tenant did not permanently vacate the subject apartment primarily because he "continued to maintain a nexus with the apartment . . . executing a renewal lease, paying rent, and staying in the apartment . . . on a sporadic basis"]; Metro. Life Ins. v Butler, 2002 NY Slip Op 50014[U], *3 [App Term, 1st Dept] [tenant did not permanently vacate the apartment because he continued to sign renewal leases in his name and maintained possessions in the apartment]; see also E. 96th St. Co. LLC v Santos, 13 Misc 3d 133[A], 2006 NY Slip Op 51980[U], *1 [App Term, 1st Dept] [tenant did not permanently vacate the apartment because, among other things, renewal leases listed his name and were either personally signed by him or bore his forged signature]; 360 W. 55th St. L.P. v Anvar, 13 Misc 3d 7, 8 [App Term, 1st Dept 2006] [tenant's permanent vacatur occurred, at the earliest, when she surrendered rights to the apartment in writing]).

Respondent's son can only establish a claim for succession if he resided with respondent for a full two years prior to respondent's permanent vacatur (see RSC § 2523.5 [b] [1]; Chess v Glass, 29 AD3d 347, 349 [1st Dept 2006]). However, the record is devoid of evidence that respondent permanently vacated the apartment at any point. By her own testimony, she never surrendered the premises, continued to sign renewal leases for the apartment in her name, paid for the apartment's rent, and received bills and bank account statements in the mail. Respondent also kept her family photos and mementos at the New York City apartment and may have visited the apartment on a sporadic basis. Based upon these findings, respondent never permanently vacated the apartment. Also, respondent has not resided in the premises as her primary residence for several years (see Claridge, 160 AD2d at 545; RSC § 2523.5 [b] [1]). As such, her son cannot state a claim for succession to the apartment (Claridge, 160 AD2d at 545; Metro. Life Ins. v Butler, 2002 NY Slip Op 50014[U], *3).

Conclusions

For all the reasons set forth herein, respondent did not maintain the apartment as her primary residence and her son did not make out a claim for succession because respondent did not [*6]permanently vacate the apartment. Accordingly, petitioner is granted a final judgment of possession against all respondents. Issuance of the warrant is stayed to August 31, 2007 for respondents to vacate.

The clerk is directed to mail a copy of this decision to all parties.

This constitutes the decision and order of the court.

Dated: August 6, 2007

New York, NY

____________________________________

DAVID B. COHEN, J.H.C. Footnotes

Footnote 1:Respondent's son, Benjamin Chan, respondent-undertenant, lived in the apartment since the beginning of the leasehold. Benjamin, now 31, asserts that the apartment is his primary residence and claims family succession rights.

Footnote 2: Respondent's explanations regarding the tax returns listing the co-op address and credit card statements sent to the co-op strained credulity and are rejected by the court.