St Owner LP v Bonczek

[*1] St Owner LP v Bonczek 2007 NY Slip Op 52556(U) [19 Misc 3d 1139(A)] Decided on December 13, 2007 Civil Court Of The City Of New York, New York County Lebovits, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 13, 2007
Civil Court of the City of New York, New York County

St Owner LP, Petitioner,

against

James Bonczek, Respondent.



056192/05



Belkin Burden Wenig & Goldman, LLP, New York City (Joseph Burden and Stacey Shimony of counsel), for petitioner.

Karlsson & Ng, P.C., New York City (David Ng of counsel), for respondent.

Gerald Lebovits, J.

In this nonprimary-residence holdover proceeding, petitioner alleges that respondent did not occupy his rent-stabilized apartment at 6 Stuyvesant Oval, Unit 8-H, as his primary residence. Petitioner claims that during the Golub period — from January 1, 2002, to October 22, 2004 — respondent lived instead with Sanford Friedman, his friend and former lover, at Friedman's cooperative apartment at 37 West 12th Street.

Based on the testimony at trial and the documentary evidence, the court concludes in this close case that the subject apartment is respondent's primary residence. The court finds, by a slim margin, that petitioner has not met its burden to prove by a preponderance of the evidence that respondent did not occupy the subject apartment as his primary residence. Although most of the documentary evidence admitted at trial suggests that respondent resided primarily on West 12th Street with Friedman, all the testimony suggests that he lived primarily at Stuyvesant Oval by himself. Respondent lived in and occupied the subject apartment while visiting Friedman a few nights a week and receiving mail and packages at Friedman's West 12st Street apartment. In this proceeding, which requires the court to weigh the documents against the testimony, the court finds overall that the testimony is more determinative.

The Law

Rent Stabilization Code (RSC) (9 NYCRR) § 2520.11 (k) excludes from coverage apartments not occupied as a primary residence. To prevail in this nonprimary-residence proceeding, petitioner must show by a preponderance of the evidence that respondent has not kept " 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 [*2]Props. Corp. v Norton, 136 Misc 2d 127, 129 [App Term, 1st Dept 1987, per curiam] [alteration in E. End Temple].) Although "[t]he tenant may rebut the landlord's evidence and demonstrate that there was a substantial physical nexus to the apartment"(Glenbriar Co. v Lipsman, 5 NY3d 388, 393 [2005], citing Draper v Georgia Props., 94 NY2d 809, 811 [1999, mem]), "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].)

To determine whether respondent occupies the Stuyvesant Oval apartment as his primary residence, Rent Stabilization Code (9 NYCRR) § 2520.6 (u) offers several factors to consider. No factor is solely determinative. These factors include: (1) the occupant's specification of an address other than the subject apartment as a place of residence on any tax return, motor vehicle registration, driver's license, or other document filed with a public agency;(2) the occupant's use of an address other than the subject apartment as a voting address;(3) occupancy of the subject apartment for less than 183 days in the most recent calendar year; and (4) any subletting of the subject apartment.

Courts also weigh other factors not included in the Code, such as the tenant's use of subject address for bank statements, credit cards, and memberships. Courts give credence to testimony by building employees and neighbors to establish the presence or absence of the tenant in the subject apartment. (See Harran Holding Corp. v Fowler, NYLJ, Apr. 28, 1987, at 5, col 4 [App Term, 1st Dept, per curiam].) Among helpful documents, a "driver's license, voter's registration, income tax returns, telephone records, bank statements, [and] mail addressed to him at the address" are "traditional indicia of primary residence" that can establish a period of residency. (See Lesser v Park 65 Realty Corp., 140 AD2d 169, 173 [1st Dept 1988, mem], lv dismissed 72 NY2d 1042 [1988].)

The Trial Evidence

A trial, all digitally recorded, was held on May 30, May 31, August 3, September 12, September 25, and October 12, 2007. Testifying for respondent were Denise Finn, a neighbor of respondent who lives at 6 Stuyvesant Oval, Apartment 8-G; James Watson, a neighbor of respondent who lives at 6 Stuyvesant Oval, Apartment 7-F; Jeanne Consolazio, a neighbor of respondent who lives at 6 Stuyvesant Oval, Apartment 9-A; Arthur Killebrew, a 601 East 20th Street resident; Joseph Pullara, Shefget Berovic, and Carlos Cazorla, building doormen 37 West 12th Street; Sanford Friedman, respondent's significant other from 1977 to 2003 and the resident [*3]and owner of the cooperative shares of West 12th Street, Apartment 10-F; and respondent himself. No witness testified for petitioner.

(1) Respondent's Use of the 37 West 12th Street Address

The basis of petitioner's argument is that during the Golub period, respondent used Friedman's West 12th Street as his residence address on several documents: (1) his driver's license; (2) his state and federal tax returns; (3) his health insurance; (4) his car and motorcycle registration; (5) his car and motorcycle insurance; (6) his psychotherapist state licence; (7) his Capital One credit-card statements; (8) his Bank of New York statements; (9) his EZpass documents; (10) his employment records; and (11) his paychecks.

Respondent's name also appears along with Friedman's on the West 12th Street mailbox for Apartment 10-F.

Respondent testified that from the beginning of his relationship with Friedman, he has used the West 12th Street mailing address to receive important documents and packages. He testified that his previous residence at an apartment building on 346 East 9th Street had no doorman and that mail services at 346 East 9th Street were unreliable. When he moved to the subject apartment, he continued to receive his packages and important mail at West 12th Street for the same reasons and by force of habit.

Evidence and testimony show that respondent was registered to vote at the West 12th Street address. On cross examination, respondent stated that he preferred to vote from Friedman's address on the West Side because it had "gay candidates."

Respondent demonstrated that he used the subject address for other documents during the Golub period: (1) his joint Amalgamated Bank statements with Friedman; (2) his Sprint PCS cellular phone invoices; (3) his membership at the Waterside Swim and Health Club located at walking distance from Stuyvesant Oval; (4) his Southern California University for Professional Studies documents; and (5) his Discover Card invoice, a joint credit card with Friedman. Respondent's use of the Stuyvesant Oval address on these documents help establish his primary residence there.

The court rejects respondent's explanations why he used the West 12th Street address for so many purposes, as reflected by the documents admitted at trial. Even though respondent used his Stuyvesant address on some documents, his use of the West 12th Street address as his primary residence on so many important documents raises questions. Respondent did not validly explain why he used this alternative address. The court finds respondent's explanations for his use of the West 12th Street address unpersuasive.

(2) Respondent's Occupancy of the Subject Apartment

Respondent testified that he has lived in the subject apartment since 1993. Before that, he resided at 346 East 9th Street. During the Golub period, he had work contracts with the [*4]Brooklyn Center and the Jewish Board of Family and Children's Services (JBFCS). He worked at the Brooklyn Center on Fridays from 9:00 a.m. to 7:00 p.m. and on Saturdays from 9:00 a.m. to 5:00 p.m. He worked at the JBFCS on Tuesdays from 12:00 p.m. to 9:00 p.m., Thursdays from 2:00 p.m. to 9:00 p.m., and Sundays from 9:00 a.m. to 5:00 p.m. He used Mondays and Wednesdays for writing. Respondent testified that during the Golub period, he spent three nights a week at Friedman's apartment. He would spend the night at the West 12th Street apartment on Mondays, Wednesdays, and Fridays from approximately 7:00 p.m. to 8:00 a..m. the following mornings (Tuesdays, Thursdays, and Saturdays, respectively).

The testimony of respondent's neighbors corroborates respondent's testimony. James Watson, a neighbor who has been living in Stuyvesant Town just short of 12 years, testified that he saw respondent in Stuyvesant Oval twice a week — on Tuesdays and Thursdays. He was unaware that respondent spent three nights a week somewhere else. Denise Finn, Jeanne Consolazio, and Arthur Killabrew, all Stuyvesant Oval residents, also acknowledged seeing and hearing respondent in the subject building regularly.

Respondent's love relationship with Friedman lasted from 1977 to 2003. Friedman testified that the reason respondent never moved into West 12th Street is that Friedman, a writer, needed solitude and working space. The court finds this testimony significant and credible. Friedman testified that respondent paid his own use and occupancy and did not contribute to any of the West 12th Street apartment's expenses. Friedman also testified that respondent keeps almost all his belongings at Stuyvesant Oval, where he engages in his usual daily routine of showering and getting ready for work.

Respondent has a key to the top-lock of Friedman's apartment, but he does not have keys to the building's front door, garage, or mailbox or to Friedman's apartment's bottom-lock. If West 12th Street were respondent's primary residence, he would have had total access to this building and its premises.

Telephone records introduced into evidence also corroborate respondent's claim that he used the subject apartment as his primary residence. The telephone calls between respondent's and Friedman's land lines correspond to the days and times respondent testified to spending at both addresses.

Respondent never sublet his apartment.

Respondent testified that he parks his motorcycle at the Stuyvesant Town Loop. He has a parking spot for his car at Skyport, a parking garage located near Stuyvesant. Pullara, a West 12th Street doorman, testified that respondent parked his motorcycle at the front of the building when he visited Friedman. Respondent did not have a designated parking spot in the West 12th Street building.

The court finds the testimony of the three West 12th Street building doormen enlightening. The testimony, which the court credits in full, corroborates respondent's claim that [*5]he spent merely three nights a week at Friedman's home: Mondays, Wednesdays, and Fridays. Shefget Berovic is a full-time doorman who works from 7:00 a.m. to 3:00 p.m. Tuesday through Saturday. He testified that he saw respondent exiting the premises between 7:00 a.m. and 9:00 p.m. on Thursday and Saturday mornings. He never saw respondent three days in a row. Joseph Pullara testified that during the Golub period he worked on Mondays between 7:00 a.m. and 3:00 p.m.; on Tuesdays and Wednesdays between 3:00 p.m. and 11:00 p.m.; and on Fridays and Saturdays between 11:00 p.m. and 7:00 a.m.. He saw respondent only twice a week, and did not see him on Friday and Saturday nights or Sunday mornings. Carlos Cazorla became a doorman in 2004 and worked from 3:00 p.m. to 11:00 p.m. Thursday through Monday. He saw respondent on Mondays and Fridays between 7:00 and 7:30 p.m.

The days and times the doormen saw respondent in the West 12th Street building correspond to the days and times that respondent alleges spending at that address. This proves that respondent used and occupied the subject apartment on the remaining days, four days a week. Friedman's and the doormen's testimony establish that respondent spent more than 183 days a year at the subject apartment, therefore demonstrating respondent's continuous physical nexus to the Stuyvesant Oval apartment. (See Rent Stabilization Code [9 NYCRR] § 2520.6 [u] [3].)

Conclusion

In this close case, the court concludes by a preponderance, but not to any certainty, that respondent occupied the subject apartment as his primary residence during the Golub period. The documentary evidence suggesting respondent's use of the West 12th Street as his primary residence presented at trial by petitioner was significant but was counterbalanced by respondent's witnesses' testimony. Also, petitioner offered no witnesses to rebut respondent's testimonial evidence.

Petitioner demonstrated through various documents that respondent used the West 12th Street address as his residence, but petitioner's allegations rely solely on this evidence. This alone is not enough to demonstrate respondent's use of the West 12th Street apartment as his primary residence instead of the subject apartment, considering that respondent also used the Stuyvesant Oval address on some documents, albeit less important documents. Respondent demonstrated that he has kept an "ongoing, substantial, physical nexus with the premises for actual living purposes." Even though the court rejects respondent's explanations why he used the West 12th Street address for most of his important documents (including his tax returns, vehicle registration, and voting registration), the court believes that respondent spent only three nights a week at that address and that he lived primarily at Stuyvesant Oval, the subject apartment.

Respondent's witnesses establish that he spent more than 183 days a year at the subject apartment. In particular, Friedman's testimony concerning his need for solitude for writing shows the unlikeliness of respondent's use and occupancy of West 12th Street apartment as his primary residence during the Golub period. Moreover, the doormen's testimony corresponded to respondent's allegations concerning his visits to Friedman's three times a week, and the [*6]Stuyvesant Oval residents' testimony demonstrates that respondent was present at the subject apartment on the days he alleged.

The Court of Appeals has explained that "[t]he landlord has the [ultimate] burden of showing . . . that the tenant[] did not use the [subject] apartment as a primary residence." (Lipsman, 5 NY3d 388 at 392.) Petitioner has not met its required burden of proof by a preponderance of the evidence. As the Court of Appeals wrote in Rinaldi & Sons, Inc. v Wells Fargo Alarm Service, Inc. (39 NY2d 191, 196 [1976]), the "[p]laintiff has the burden of proving his case by a fair preponderance of the credible evidence. If, at the close of the proofs, the evidence as a matter of logical necessity is equally balanced, plaintiff has failed to meet his burden and the cause of action is not made out."

Respondent demonstrated he resided at 6 Stuyvesant Oval more than 183 days a year and presented testimonial evidence that counter-balanced petitioner's documentary evidence. Petitioner did not prove by a preponderance that respondent resided at 6 Stuyvesant Oval. The court concludes that Apartment 10-F of 6 Stuyvesant Oval is respondent's primary residence.

Taking into consideration all the evidence presented at trial, the petition is dismissed.

Dated: December 13, 2007

J. H. C.