56 7th Ave., LLC v Sobel
Annotate this CaseDecided on November 20, 2014
Civil Court of the City of New York, New York County
56 7th Avenue, LLC, Petitioner-Landlord
against
Jules Sobel, Respondent-Tenant "John Doe" and "Jane Doe" Respondent-Occupants
L & T 86105/2011
Attorneys for Petitioner
By: Jeffrey L. Goldman, Esq.
270 Madison Avenue
New York, NY 10016
212.867.4466
HIMMELSTEIN, McCONNELL, GRIBBEN,
DONOGHUE & JOSPEH
Attorneys for Respondent
By: Samuel Himmelstein, Esq. 15 Maiden Lane, 17th Floor
New York, NY 10038
212.349.3000
Sabrina B. Kraus, J.
The underlying summary holdover proceeding was commenced by 56 7th AVENUE, LLC(Petitioner) against JULES SOBEL(Respondent), the rent-stabilized tenant of record based on the allegation that Respondent has failed to maintain the Subject Premises as his primary residence. Both parties are represented by counsel.
PROCEDURAL HISTORY
Petitioner issued a Notice of Non-Renewal dated May 24, 2011, advising Respondent that his last lease, which expired September 30, 2011, would not be renewed based on his alleged non-primary residence. The Notice further asserted that: Respondent was occupying Room 708 at a Holiday Inn in Los Angeles, California, and has resided there since at least February 2011; Respondent had not voted from the Subject Premises since 1984; Respondent did not have telephone service in his name at the Subject Premises; Respondent did not have a driver's license listing the Subject Premises as his address; and that Respondent had not been seen at the Subject Building since December 2010.
The petition is dated February 6, 2011, and the proceeding was initially returnable October 28, 2011. Respondent failed to appear on the initial return date, and the proceeding was adjourned to November 17, 2011, for inquest.
On November 17, 2011, Respondent appeared by counsel, and filed an answer asserting various procedural defenses and a counterclaim. The parties entered into a stipulation vacating Respondent's default, withdrawing Respondent's jurisdictional defenses, and providing that [*2]Respondent consented to the jurisdiction of the court.
On December 12, 2011, Respondent obtained new counsel, a consent to change attorney was filed, and the proceeding was marked off calendar pending discovery.
An amended verified answer was filed September 6, 2012, including procedural defenses and asserting that any absences from the Subject Premises were excusable, as Respondent was either hospitalized for medical treatment or temporarily relocated for reasons related to Respondent's health.
On November 7, 2013, Petitioner moved to restore the proceeding to the calendar for trial. The motion was granted per stipulation, and a trial date was set for January 15, 2014.
On January 29, 2014, the parties entered into a stipulation wherein Respondent consented to Petitioner's prima facie case and Petitioner's Notice to Admit.
On March 6, 2014, the proceeding was assigned to Part L for trial. The trial commenced on said date, and continued on March 19, 2014. On March 19, 2014, the trial was adjourned for a motion in limine regarding the admissibility of a notebook maintained by Respondent.
On March 28, 2014, the court issued a decision regarding the admissibility of the notebook, and the trial continued on May 14, 2014.
On July 2, 2014, the Court granted Respondent's motion for an order holding Dr. Igor Kirzhner (Kirzhner) in contempt for failing to comply with a subpoena and for failing to appear to complete his testimony.
The trial continued on September 29, 2014, and concluded on October 2, 2014, The proceeding was adjourned to November 12, 2014, for the submission of post trial memoranda, and the court reserved decision.
FINDINGS OF FACTRespondent is the rent-stabilized tenant of record of the Subject Premises pursuant to an original lease dated October 1, 1985, and most recently renewed on June 28, 2010, for a period through and including September 30, 2011. Petitioner is the landlord of the Subject Premises pursuant to the last renewal lease.
Respondent's testimony that he resided without interruption at the Subject Premises from 1985 through 2009, is undisputed. In 2010, Respondent was voluntarily admitted to Gracie Square Psychiatric Hospital (GSH) as an in-patient on three separate occasions from March 17-31, from April 5 to May 28 and from June 2 through January 5, 2011. Upon each admission, a doctor certified that inpatient hospital care was medically necessary for Respondent. For example, on Respondent's June 7, 2010 admission Dr. Kambli noted in a "mental status examination" that Respondent was paranoid and a danger to himself, and that Respondent was psychotic. Respondent received an Axis 1 diagnosis of Chronic Paranoid Schizophrenia (Ex B) .
Upon his discharge from GSH, Respondent flew to Los Angeles, California, and stayed at a Holiday Inn by the airport. The discharge records from GSH indicate that Respondent was going to California to "take vacation for unspecified time frame (Ex B, 1/5/11 discharge report, pg. 3)." Respondent was at the Holiday Inn for the next year through January 17, 2012. Respondent returned to the hotel two times in 2012 from March 21 through April 16, and again from July 31 through September 1, 2012.
Respondent's treating doctors at GSH had recommended Respondent transition to an assisted living facility upon discharge. Respondent did not accept this recommendation, and instead used his stays at the Holiday Inn to transition back to living full time in the Subject [*3]Premises.
Respondent's explanation for why he chose to stay at a hotel, rather than an assisted living facility, and his failure to seek treatment during this period, may not make sense to the average "well" person, however, it is clear that his need for this type of transition was due to his mental illness, and that in fact the transition was successful in allowing Respondent to return to living in the Subject Premises. Respondent did credibly testify that the period he spent in the hotel in Los Angeles helped him transition to independent living by giving him a period of time, where he did not have to do cooking, cleaning and other daily tasks he still found difficult.
In 2013, Respondent took 10 short trips to stay at the same hotel, but otherwise occupied and lived in the Subject Premises. As of the time he testified at trial, Respondent had taken one trip to the hotel in 2014 for a few days.
Respondent is 68 years old and has lived in the Subject Premises for nearly 30 years. Respondent has never been married and has no children. The Subject Premises is a one bedroom apartment. Respondent lives a solitary isolated life with little apparent connection to other people.
Respondent has not worked since 1992, receives no government benefits and has no health insurance. Respondent has not filed tax returns for the years 2009 through 2011. Respondent has not been registered to vote in 40 years and has had no drivers' license for the same period of time. However, Respondent is a man of means and well able to support himself.
Respondent has never had a cell phone, a computer, or an email address . Respondent has no cable television or internet service.
Respondent has a landline at the Subject Premises and a long distance account for phone service. Statements for both accounts are sent to the Subject Premises. Gas and electric for the Subject Premises are included in Respondent's rent, and Respondent maintains no separate accounts for these utilities.
Respondent has bank accounts and brokerage accounts, Respondent's testimony that the statements for all accounts are sent to the Subject Premises is undisputed.
Respondent has never sublet the Subject Premises and has never had a roommate.
The Subject Premises is fully furnished and decorated with Respondent's belongings.
The Court found both Kirzhner and Respondent to be credible witnesses.
Kirzhner credibly testified that Respondent's hospitalization was warranted based on his diagnosis and conditions, and that Respondent benefitted from his treatment, which was aimed at preparing Respondent to return to independent living.
DISCUSSION§ 2524.4 ( c) of the Rent Stabilization Code (RSC) allows for a landlord to refuse to renew a lease of a rent stabilized tenant and commence an eviction proceeding against the tenant, where the housing accommodation is not occupied by the tenant as his primary residence.
§ 2520.6 (u) of the RSC in defining primary residence provides:
Although no single factor shall be solely determinative, evidence which may be considered in determining whether a housing accommodation ... is occupied as a primary residence shall include ...
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) of this title;
§ 2523.5(b)(2) of the RSC provides that temporary periods of relocation shall include periods where the tenant is hospitalized for medical treatment or has such other reasonable grounds as determined by DHCR.
Respondent met his burden of establishing that his absence from the Subject Premises was excusable, and that he has maintained and continues to maintain a substantial nexus to the Subject Premises for actual living purposes.
It is well settled that where a tenant is an in patient for medical or psychiatric treatment said absence is excusable for non-primary residence purposes [Katz v Gelman 177 Misc 2d 83; WSC 72Nd Owners LLC v Bondy 21 Misc 3d 145(A)]. In the case at bar, as in Katz, Respondent's absence was for medical reasons, and the treatment he had received was designed to and did prepare him to return to independent living. Morever, when viewed in light of the entire tenancy (615 Realty Co v Mikeska 75 NY2d 987) Respondent's absence was short lived. The fact that he transitioned from the hospital to the Subject Premises by spending periods in a hotel should not mandate the lost of his home of three decades.
Petitioner relies on Toa Contruction Co v Tsitsires (54 AD3d 109). In Toa, there was no dispute that the tenant's failure to live in the subject premises was due to his mental illness. However, the court held that because there was no evidence that the tenant would ever be able to live in the Subject Premises, his absence was not excusable. This lack of intent or ability to ever resume occupancy of the Subject Premises does not exist in the case at bar. In Toa, the tenant refused to get treatment, in the case at bar Respondent voluntarily checked himself into GSH on three separate occasions. In Toa the tenant abandoned the apartment and never used it for living purposes. In this case, Respondent after receiving treatment and recovering in California resumed occupancy, and Respondent had occupied long term prior to his hospitalization.
In the case at bar, Respondent has demonstrated both the intent and the ability to resume living in the Subject Premises and did in fact return to the Subject Premises.
The emphasis in Toa that the tenant would never resume occupancy is repeatedly highlighted by the court in its decision. The Court held:
Unless there is evidence at trial supporting a conclusion that the tenant will at some point be able to actually reside in the apartment, his absence should not be deemed excusable, and his abandonment of the premises as his residence should be acknowledged as such (Toa at 110).
The Appellate Division distinguished its holding from Katz holding:
While, as in Katz it is clearly a mental health problem that causes respondent to be absent from the subject premises, unlike the situation in Katz, there is no credible evidence indicating that respondent will ever return to and reside in the subject premises, or even that he has any intent to do so. Indeed there is no reason to conclude, based on the credible evidence in the record, that respondent can be cured of his need or compulsion to stay out of the subject premises (Id at 114).
Petitioner also argues that the court should rely on its prior holdings in 155 West Associates v Dapper (2009 WL 3508893) and 20 Fifth Ave LLC v Wertheimer [45 Misc 3d 1206(A)]. However these holdings are not applicable to the case at bar.
In Dapper, the court found Respondent was not primarily residing in the subject premises based on the following facts : that he moved to California, worked in California, had a California driver's license, was registered to vote in California, owned a car registered to him in California, and declared himself to be a resident of California in documents filed with the court. None of these facts exists in the case at bar, where Respondent took no action of any kind to show he intended to relocate to California for living purposes. Additionally, in Dapper, the court found the tenant lacked credibility, whereas in the case at bar the court found Respondent to be credible.
Similarly, in Wertheimer this court fond that the tenant's failure to occupy her apartment for living purposes for a seven year period during which she lived with her companion in a different apartment in the same building was not an excusable absence. In that case, the tenant was not away for medical treatment, most of the tenancy had been spent not living in the apartment, the tenant did not testify on her own behalf, and the landlord offered expert medical testimony credited by the court over the testimony of the experts presented by the tenant. In the case at bar, Respondent has resided in the Subject Premises for decades, was away for a relatively short period of time when viewed in light of entire history of the tenancy, did credibly testify on his own behalf, and the landlord offered no expert to contradict the testimony of Respondent's psychiatrist that his inpatient hospitalization was medically necessary.
CONCLUSIONBased on the foregoing, the court finds that Respondent's absence from the Subject premises was excusable and the petition is dismissed.
This constitutes the decision and order of this court.
Dated: November 20, 2014
New York, New York
___________________
Hon. Sabrina Kraus
BELKIN BURDEN WENIG & GOLDMAN, LLP
Attorneys for Petitioner
By: Jeffrey L. Goldman, Esq.
270 Madison Avenue
New York, NY 10016
212.867.4466
HIMMELSTEIN, McCONNELL, GRIBBEN,
DONOGHUE & JOSPEH
Attorneys for Respondent
By: Samuel Himmelstein, Esq.
15 Maiden Lane, 17th Floor
New York, NY 10038
212.349.3000
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