Barber v Firmin

[*1] Barber v Firmin 2009 NY Slip Op 52750(U) [26 Misc 3d 1226(A)] Decided on November 5, 2009 Civil Court Of The City Of New York, Kings County Fiorella, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 5, 2009
Civil Court of the City of New York, Kings County

Richard Barber, Petitioner,

against

Sheila Firmin & Richard Firmin, Respondent.



L & T 095186/06



Attorneys:

Himmelstein, McConnell, Gribben

Donoghue & Joseph

15 Maiden Lane - 17th Floor

New York, New York 10007

Stern & Stern, Esqs.

50 Court Street, Suite # 1100

Brooklyn, New York 11201

Anthony J. Fiorella, J.

Petitioner commenced this holdover summary proceeding alleging that the respondents do not utilize their New York rent stabilized apartment as their primary residence. The petitioner claims that the respondents spent the majority of their time in Ohio and Illinois and further, that their primary residence is a house partially inherited from Richard Firmin's (respondent) mother's estate and partially bought out from the other beneficiaries of the inheritance in 2003 after Mr. Firmin's father death. The house is located in Zanesfield, Ohio. The respondents admit that they haven't spend much time in New York, but that this was due to the fact that they had to take care of their ailing parents. They also admit that they own the house in Ohio but that they have no plans to move there permanently, because they cannot imagine spending the rest of their lives in a small village that lacks a sizable movie theater, restaurant, or public transportation.

Salient Facts

The respondents resided in 224 Henry Street, Brooklyn, New York for thirty four (34) years. Now they are both retired senior citizens. Sheila Firmin, 67 year old , used to work for the city in child welfare administration. Her husband, Richard Firmin, who at 71 years old is a [*2]tenor and sang with Metropolitan Opera for 25 years. They both were involved in the New York cultural scene and very much enjoy walking in the city or heading to the theater, museums, or films.

The respondents' testimony, which was taken throughout several afternoons, was very detailed and credible. Richard Firmin testified that he grew up on 2668 Sandusky Street, Zanesfield, Ohio. After his mother passed away in 1998, he inherited half of that house and after the passing of his father in 2003, he bought out his sister-in-law and became the sole owner of the house. The house was built in 1840 and his father was the last true town doctor, and thus, the residence has significant sentimental and historical value to Mr. Firmin. It also became a very convenient place to stay when the Firmins were frequently traveling to Chicago to take care of Sheila's ailing parents, but since it was quite old and was falling apart, it needed a lot of care. Sheila's parents lived in small 2-bedroom brick bungalow. Mr. Firmin does not have any plans to sell the house in Zanesfield, but he is thinking of donating it to the County Historic Society at some point. Mr. Firmin himself has a great deal of health problems: he has a heart disease, has undergone an aortic valve replacement, requires cumidin therapy which necessitates a weekly to monthly blood check, suffers from coronary artery disease, and has already had one bypass surgery. Mr. Firmin also has a benign prostatic Hyperplasia. He takes 10 to 12 pills a day and stated that there are no doctors in close proximity to the house in Ohio like there are near his residence in New York (he knows of about 10 doctors in immediate neighborhood).

As mentioned, Sheila Firmin's parents live in a bungalow on Elmwood Avenue in Berwyn, Illinois. During the relevant years from 2004 to 2006, her parents were going through an extremely difficult time. Her father was blind and showing early symptoms of dementia. When the Firmins visited them in 2003 for Sheila's father's 90th birthday, they realized that her parents' situation was quite grave in that they were living by themselves with ailing dog and suffered terrible falls. They spent some time there taking Sheila's father to an emergency room and to a few neurologists. They went back again in November of 2003 because they received a phone call that Sheila's father's health was declining. He lived in three (3) nursing homes and a hospital where he developed an infection (MURSA) which settled in his chest. Sheila's father was then was diagnosed with pneumonia, fell into coma for a time and almost died. Fortunately, he recovered and was taken back home. In the meantime, Sheila's mother also had her own health problems. She had serious rheumatoid arthritis and chronic anemia. In January 2004 she was admitted to a hospital and was diagnosed with end stage kidney disease, and according to the doctors had two (2) months to live without dialysis. After Sheila took her home in February 2004, she arranged for home rehabilitation, nursing, physical care, doctors, social workers etc. After her second hospitalization, Sheila's mother no longer was able to walk. She was thus confined to a wheel chair, developed bed sores, and frequently required injections. At some point around March 2004, both of Sheila's parents were in wheelchairs. Her father needed assistance walking, and required a wheelchair and a walker. Both parents required special diets and all kinds of constant home care. It was an extremely chaotic and difficult time for Firmins. From March 2004 to November 2005, they made six (6) visits to Illinois. Ultimately, Sheila's father passed away at age 92 in November 2005 and her mother passed away at the same age in May 2008.

Evidence Submitted

In addition to their own testimony, the respondents introduced into evidence various documents in order to show their nexus with their Brooklyn apartment. They submitted their [*3]Federal and New York Tax Returns for the years 2004, 2005 and 2006, New York ID cards with their New York address, their New York Metro cards, ConEdison bills for the period of November 2004 to December 2006 which in fact show several months with zero (0) usage, Verizon statements for the period of January 2004 to October 2006, Macy's statements with no mailing address showing New York charges in February 2005 and April 2006, property insurance with Liberty Mutual under their Brooklyn address (February 2006 - February 2007), Sheila's life insurance, several documents using their New York address: medical statements, insurance statements, Social Security statements, New York voters' registration for Richard and Sheila, as well as detailed calendars of their trips to Ohio and Illinois prepared by the respondents based on their credit card activities and Sheila's father's voluminous medical records.

The petitioner's prima facie case was stipulated by the parties. The petitioner submitted numerous documents into evidence in order to prove the respondents' association with their lives in Ohio. The petitioner submitted a copy of the respondents' deed to the house in Zanesfield, Ohio, dated 23 September 2003, as well as a copy of the corresponding property insurance and real estate tax bill. A copy of Richard Firmin's Ohio drivers' license along with the license application form (with an Ohio mailing address) was also introduced into evidence. The Firmins testified that after months of renting cars for their trips to Ohio and Illinois, they decided to buy a car. They did not want to take the car to New York, therefore, they purchased it in Ohio. According to Mr. Firmin, he was told by the Ohio DMV that in order to purchase a car in Ohio, he would need to surrender his New York State license and apply for an Ohio license. The petitioner also introduced the respondents' voter registration, which was changed from New York to Zanesfield, Ohio. The respondents explained that they were highly motivated to vote in the 2004 presidential election, but knew that they would not be in New York at that time, and thus made the registration change. They have never voted in Ohio again. Finally, the petitioner introduced the respondents' bank records from Citibank, as well as their Chase credit card statements, showing various charges from all three states (NY, OH, IL). However, the mailing address for the statement was in Brooklyn. The respondents' checking accounts with Huntington bank were also introduced, which for the statement dated December 2002 to January 2003 utilized a post office box in Brooklyn; from March 2004 to the present, however, a post office box in Zanesfield was used.

The method of mail delivery throughout the period in question created the greatest amount of controversy. The respondents testified that they did not remember how the mail was delivered to them. First, they testified that at some points their friend or mailman would forward them their mail. They did not recall when or whether they applied for a change of address, nor did they recall the frequency at which they received the mail. The respondents also did not mention the post office box that they maintained in Brooklyn, to which their Huntington bank statements were mailed.

The petitioner introduced the testimony of two witnesses. The first to testify was Paul Sayegh, who asserted (among other things) that he was once allowed entry into the Firmins' apartment in Brooklyn to assess water damage and the integrity of the ceiling, and that while there, he witnessed a virtually empty apartment. This allegation was denied by the Firmins. Next to testify was Theodore Ghorra. Mr. Ghorra knew the Firmins from the time he moved into 224 Henry Street in 2001 until he moved out in March 2007. He basically reiterated the Firmins' admission that they were away frequently. Mr. Ghorra also testified that at some point he saw [*4]the Firmins packing their household belongings into a car. It was on the occasion that the Firmins left their apartment for a full year.

Discussion

In a non-primary residence holdover proceeding, the petitioner must establish by a preponderance of the evidence that the tenant's occupancy of the subject apartment "did not constitute the type of ongoing, substantial, physical nexus with the premises for actual living purposes' (citations omitted) that would justify affording the tenancy continued protection under the rent stabilization laws". Emel Realty Corp. v. Carey, 188 Misc 2d 280, 729 NYS2d 228, citing Berwick Land Corp. v. Mucelli, 249 AD2d 18, 617 NYS2d 44. Numerous factors may be considered to determine whether the subject apartment is the tenant's primary residence including 1) tenant's use or non use of the address other than apartment's address on a tax return, motor vehicle registration, driver's license, or other publicly filed documents, 2) the tenant's use or non use of an address other than apartment's address as a voting address, 3) whether tenant lived in apartment for fewer than 183 days in a calendar year, and 4) whether the tenant subleased apartment. None of those single factors, however, are dispositive. ACP 150 West End Ave. Assocs., LP v. Greene, 15 Misc 3d 1112(A), 839 NYS2d 431 (2007). The courts consider numerous factors in adjudicating non-primary residence cases, e.g. evidence that the tenant was seen moving out furniture, Conthur Dev. Co. v. Bartfield, 15 HCR 261(A), NYLJ 8/20/87, 11:1; possession of another dwelling, Schwartz v. Certified Management Corp. 148 AD2d 387; 539 NYS2d 332 (1989); intent to return to apartment at some time, Kips River Assocs. v. Phelan, 30 HCR 311A, 2/28/97, Index No. 113945/94, testimony of the landlord's employees, ST Owner LP v. Bonczek, 19 Misc 3d 1139(A) (2007) etc. It is clear though, that no single factor is determinative in a primary residence inquiry. Toa Construction Co., Inc. v. Tsitsires, 9 Misc 3d 469, 798 NYS2d 674 (2006).

In the case at bar, both parties introduced into evidence various records and testimony supporting their position. The petitioner alleges that the respondents were not living in the Brooklyn apartment for most of the time during the period in question; instead, they lived in their house in Zanesfield, Ohio, therefore forfeiting the right to receive continued protection under the Rent Stabilization Law. The respondents admit that while they in fact did spend several months away from New York, they did so only because they had to take care of their ailing parents and the inheritance. The respondents assert that they had no intention to abandon their apartment in New York where they spent most of their lives and which they love. The record shows that in fact Sheila's parents were in very bad condition until their death. According to her testimony, her brother was completely unhelpful during this time and they had no choice but to keep traveling back and forth trying to take care of their loved ones. It must have been an extremely difficult time in the Firmins' life. They are both retired and could not stay in New York while their parents needed help elsewhere. Their sense of responsibility, human nature, and love would not allow it.

Although the respondents acknowledged spending a considerable amount of time away from New York, their absence is excused by taking care for their ailing (now deceased) parents in the relevant time period. To buttress their case, the respondents introduced into evidence voluminous medical records regarding their now deceased father's condition. They also were periodically returning to their apartment in Brooklyn and had no intention of abandoning it. Such circumstances do not mandate a finding of nonprimary residence (see 542 East 14th Street LLC v. Lee, 2009 NY Slip Op. 05689, Nicole Assets, Inc. v. Yeargin, 2009 NY Slip Op. [*5]51861(U), Husdsoncliff Bldg. Co. v. Houpouridou, 22 Misc 3d 52 [2008]), Nussbaum Resources I, LLC v. Gilmartin, 195 Misc 2d 145, 756 NYS2d 408 [2003] , Kalimian v. Holmberg, 2001 NY Slip Op. 40297(U).

Conclusion

After consideration of all of the testimony and documentary evidence elicited at trial, the Court finds that under the circumstances of this case, the respondents' absence from the subject premises was sufficiently explained and excused; they have continuously maintained a sufficient nexus with the subject apartment for actual living purposes and they do not deserve to lose their protection under the Rent Stabilization Laws.

Based on the foregoing, the court grants the respondents a final judgment dismissing the instant holdover proceeding with prejudice.

Considering that the petitioner's demand for use and occupancy are dismissed together with the petition, the Court will not entertain the respondents' warranty of habitability claims. Both claims are severed and may be sought in a separate action.

This constitutes the decision and order of the Court.

Dated: November 5, 2009

__________________________________

ANTHONY J. FIORELLA, JR., JHC