Fros Prop., LLC v Jeung Hing Lam

[*1] Fros Prop., LLC v Jeung Hing Lam 2016 NY Slip Op 50179(U) Decided on February 19, 2016 Civil Court Of The City Of New York, New York County Kraus, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 19, 2016
Civil Court of the City of New York, New York County

Fros Property, LLC, Petitioner-Landlord,

against

Jeung Hing Lam, Respondent-Tenant.



L & T 60196/2015



DONALD ENG, ESQ

Attorney for Petitioner

139 Centre Street, Suite 510

New York, New York 10013

JON ARI LEFKOWITZ, ESQ

Attorney for Respondent

122 Avenue M, Suite 204

Brooklyn, New York 11230
Sabrina B. Kraus, J.

BACKGROUND

This summary holdover proceeding was commenced by FROS PROPERTY, LLC, (Petitioner) against JEUNG HING LAM (Respondent), the rent stabilized tenant of record of 47 Essex Street, Apt 3, New York, New York 10002 (Subject Premises), based on the allegation Respondent has not maintained the Subject Premises as his primary residence.

PROCEDURAL HISTORY Petitioner issued a notice of nonrenewal dated December 23, 2014, asserting that:

Respondent had moved out of the Subject Premises and was residing at 84-36 164th Street, Jamaica, New York; that Respondent was not maintaining the Subject Premises as his primary residence; that the Subject Premises was vacant except for occasional visitors; and that Respondent has not maintained an ongoing substantial physical nexus with the Subject Premises for actual living purposes.

Respondent's lease expired on March 31, 2015.

The notice of petition was issued by the clerk on April 1, 2015, and the proceeding was initially returnable April 14, 2015. Respondent appeared by counsel and filed an answer dated April 13, 2015 asserting: a general denial; breach of warranty of habitability; improper service; that Respondent was unable to live in the Subject Premises based on Petitioner's breach of warranty of habitability and related claims.

On the initial return date, Petitioner's application for discovery was granted by the court and the proceeding was marked off calendar pending discovery.

On July 13, 2015, Petitioner moved for relief based on Respondent's failure to comply with discovery. The motion was withdrawn by Petitioner on the return date.

Respondent appeared for a deposition on August 13, 2015 (transcript admitted as Ex 6).

On October 8, 2015, Petitioner moved to restore the proceeding to the calendar for trial. The motion was granted without opposition and a trial date was set for November 24, 2015.

On January 13, 2016, the proceeding was assigned to Part R for trial, certain documents were marked into evidence, and the trial commenced. The trial continued on January 14, and concluded on January 20, 2016. The proceeding was adjourned to February 10, 2016, for post trial submissions, and on that date the court reserved decision.

FINDINGS OF FACT

Petitioner is the owner of the Subject Building pursuant to a deed dated May 30, 2012 (Ex 1). There is a valid MDR on file with HPD (Ex 2).

Respondent is the rent stabilized tenant of record of the Subject Premises, pursuant to a written lease agreement, most recently renewed pursuant to a Renewal dated December 27, 2012 for a two year term expiring March 31, 2015, at a monthly rent of $511.52 (Ex 4). The legal registered rent for the Subject Premises as of August 2014 is $511.52 (Ex 3).

Respondent and his wife Linda Lam (Lam) are the owners of a single family home in Jamaica Queens located at 82-84 164th Place (164th Street House) pursuant to a deed dated May 23, 1985 (Ex 5). Respondent receives tax documents addressed to him at that premises related to payment of real estate taxes (Ex 9).

Respondent also acknowledged owning a two family house at 82-72 165th Street in Jamaica, New York (Ex 6, p. 38) and a building at 84-36 164th Street, Jamaica Queens which consists of two apartments.

Respondent acknowledged both at his deposition and at trial that he did not stay overnight in the Subject Premises at all in 2015, and that he and Lam have not used the Subject Premises for sleeping, eating or bathing since at least late 2013. Respondent also testified at his deposition, that prior to the time he and Lam stopped sleeping in the Subject Premises, they stopped eating in the Subject Premises (Ex 6, p. 43).

Subpoenaed records from the Department of Motor Vehicles were submitted into evidence by Petitioner. They show that in 2004 Respondent obtained a drivers license listing the 164th Street House as his residence (Ex 7). The license was renewed in 2009. Nowhere in the DMV record is the Subject Premises referenced as an address for Respondent. Respondent testified that his car is also registered to the 164th Street House. Respondent has an insurance policy for said house, but no insurance for the Subject Premises.

Respondent submitted three bank statements for an HSBC account, one was from 2010, and the other two are from June and July of 2013 [Ex L(1) - (3)]. These statements are addressed to Respondent at the Subject Premises. A letter from the Bank to Respondent in 2014 [*2]was also submitted (Ex N) as was a 2014 year end summary (Ex D).

Respondent's documents related to jury duty in 2010 also list his address as the Subject Premises (Ex B).

The first witness for Petitioner was Calvin Meritt, an employee of Con Edison who was subpoenaed by Petitioner. Con Edison records for the Subject Premises and 164th Street House were submitted into evidence. The documents establish relatively little consumption in the Subject Premises for the years 2012 through 2014 (Ex 8b). The records for the 164th Street House show that Respondent opened an account with Con Ed in his name at that address in June 2008 and show much higher consumption than in the Subject Premises (Ex 8c).

The next witness called by Petitioner was Janet Chiong (JC). JC is an officer of Petitioner, and her husband has an ownership interest in the Subject Premises. JC works in a medical office located on the ground floor of the Subject Building. JC's hours are Monday through Friday from 8:30 am to 6 pm. JC received no communications from Respondent in 2013 or 2014 of any kind. Petitioner had a managing agent for the Subject Premises in 2013, and in 2014 Petitioner took over management. JC received no complaints from Respondent about repairs in 2014, even though she was at the subject building most days. JC keeps an apartment in the building which she sometimes slept in during the years of 2014 and 2015.

Lardona Qytetza (LQ) worked as a managing agent for Petitioner in 2014 and 2015 and reports to JC. Any tenant complaints in 2015 would be directed to LQ. LQ started working for Petitioner in 2011 or 2012 as an accountant, and later became a property manager.

Respondent's first witness was George Zou (GZ). GZ lives at the 164th Street House. GZ moved into that premises in 2005, because he had a relative who used to live there. GZ is not related to Respondent. GZ signed a lease for the 164th Street House dated December 1, 2012 (Ex U). The lease is for a three year period ending December 31, 2015 at a monthly rent of $1600.00. This is the first lease GZ ever signed with Respondent. Respondent requested the lease and presented it to GZ for signature.

GZ lives in the 164th Street House with his wife, daughter, mother and father in law and brother in law. Respondent and his wife do not live in the 164th Street House with GZ.

GZ does see Respondent and his wife at the 164th Street House. They come to collect the rent or make repairs. There is a garage at the 164th Street House, GZ does not park his car in the garage but parks in the driveway. GZ has no access to the garage which is locked. GZ has never seen what is inside the garage.

The 164th Street House consists of two floors and a basement. Respondent uses the basement for storage, GZ does not know what's in the basement, except for the boiler.

GZ and Respondent split the Con Edison bill for the 164th Street House. Respondent receives mail at the 164th Street House. GZ holds the mail for Respondent until Respondent comes to collect the rent. The court found GZ to be a credible witness.

The next witness called by Respondent was Lin Xing Hong (Hong). Hong is a tenant of 84-36 164th Street, one of the premises owned by Respondent, pursuant to a lease dated February 11, 2011 for a five year term through February 2016 (Ex V). The lease is only for the ground floor store of such building, and specifically excludes Hong's use of the basement and backyard. Hong runs a Chinese Take Out Restaurant from the premises. Hong testified that two families live above the restaurant, and that Respondent and Lam do not live at that address. Hong has been at said premises since March 2011 and generally works from 11 am to 11 pm. Hong only sees Respondent and Lam at the premises when they come to collect the rent. Hong has not [*3]been in the apartments upstairs since 2011.

Lam was the next witness called by Respondent. Lam testified that she has lived at the Subject Premises for over thirty years. Lam testified that she currently lives with a "friend" named Brian, that she sleeps at Brian's house in Staten Island and has been doing so for several months. Before that Lam testified that she slept at her nephews home. Lam only goes to the Subject Premises to water her plants and check the mail. Lam testified that she does not use the apartment for living purposes because for the past year or two the bathtub has not drained properly, there's no electricity in the kitchen and bathroom, and there is no heat. Lam testified that she complained to the landlord about conditions in the apartment in 2010 and 2011 and that Petitioner sent someone to look at the conditions, but that the conditions in 2010 were minor.

Lam testified that she maintains a landline at the Subject Premises, but she did know if there was an answering machine for that number. Lam testified that after 2013 there were periods without heat and hot water and Lam stopped living in the Subject Premises and started sleeping at her nephew's home. Lam has a driver's license issued in 2012 that lists the Subject Premises as her address (Ex D).

Lam is also known as Shuet Chu Lam. Tax returns for Lam and Respondent for 2012 through 2014 were admitted into evidence [Ex A(1) - (3)]. The returns list the Subject Premises as their address. The tax returns show that Respondent and Lam reported income in 2012 of $180,422.00, in 2013 of $$281,511.00 and in 2014 of $256,887.00.

Lam and Respondent have two children who are young adults in their early twenties, Sabrina Lam and Sebastien Lam. Lam and Respondent claims them as dependents on all three returns representing that the children lived with them. Lam acknowledged at trial that this was false and testified that she did not know where either her son or her daughter lives. Lam first testified that her daughter was taking care of her mother in law, then testified that her daughter sometimes lives with friends and then testified that she did not know where her daughter lives. Lam does not know if her daughter has a cell phone number she testified that her daughter may have a cell phone, but that Lam rarely calls it because her daughter does not wish to be disturbed.

Lam testified that she and Respondent had an estimate to fix the bathtub themselves but that it was to expensive for them to proceed and that the repair was too difficult for them to tackle. Lam never withheld rent until Petitioner commenced this proceeding.

The court did not find Lam to be a credible witness.

Respondent was the next witness to testify. Respondent testified that he did not withhold rent, despite his claim that the Subject Premises was unlivable for nearly two years, because he thought a new owner would come in who would do the repairs. Respondent considered the repairs a "minor matter" and did not wish to file a complaint in writing with the landlord, instead Respondent chose only to notify the landlord by a phone call.

Respondent testified regarding taking photos of conditions requiring repair of the Subject Premises in the summer of 2013 (Ex Y). Incredibly, Respondent testified he never showed the photos to Petitioner or to anyone prior to the trial. Respondent testified that the major issue with the Subject Premises was that the bathtub was clogged and Respondent likes to take two baths per day. Respondent testified he used a plunger to unclog the tub and sometimes it worked and sometimes it did not. This testimony contradicted both his own and Lam's testimony that the repair to unclog the bath tub was to complicated and expensive for them to address themselves. Respondent submitted pictures of some conditions (Ex Y) which he acknowledged were repaired [*4]by Petitioner in the summer of 2015.

Respondent submitted documents showing he had made complaints to HPD. There is a complaint from 2007 resulting in a violation issued for no electricity to the Subject Premises (Ex Z-6) and a complaint regarding a defective door from 2007 (Ex Z-5). There is a 2009 violation for lack of electricity to light fixtures (Ex Z-4) ticket from December 9, 2013. Respondent testified that in 2007 there was no electricity in the Subject Premises, but that electricity was restored but he could not recall when. Respondent believes that the electricity was restored prior to 2014. Respondent testified the only room in the Subject Premises where electricity was not restored is the kitchen.

Respondent testified that in December 2013 his wife called Con Ed because she smelled gas and they disconnected the stove in the Subject Premises. Respondent testified that Petitioner provided a new stove and that gas was restored. Respondents testimony regarding times where there was no gas or electricity was inconsistent, contradictory and therefore unreliable. Although Respondent was the primary witness at trial, it appear that it was primarily Lam who dealt with Petitioner regarding the Subject Premises.

The Subject Premises has its own individual units for heat and hot water.

In September 2014, Petitioner requested access to the Subject Premises for an HPD inspector to clear violations (Ex Z-2). Respondent agreed to provide access and to be present at the Subject Premises for that purpose (Ex Z-3). Respondent's letter of September 30, 2014 makes no request for repairs and does not reference the need for any repairs.

After Petitioner issued the notice of nonrenewal Respondent filed complaints with HPD in February 2015 resulting in violations being issued for lack of hot water, defective heating and hot water systems, defective floors, a defective door, a leak, and for the waste line in the tub (Ex X), but respondent testified that these conditions were repaired by the Summer of 2015.

Respondent submitted two pictures of the Subject Premises taken in 2015 [Ex AA(1)-(2)]. These pictures show that the Subject Premises appears to be used for storage, rather than for living purposes. While they depict sufficient room to move about, there are items piled stacked and bagged on all sides of the rooms shown. There is a bunk bed in one of the pictures, but it looks like it is not used for sleeping and has items hanging off of it and piled on the side. This conclusion is further supported by Respondent's testimony that the items depicted and remaining in the Subject Premises primarily belong to Lam, and the evidence that the basement and garage of the 164th Street house are also being used to store large amounts of Respondent and Lam's property.

Respondent testified that since the summer of 2015 he stopped sleeping at Yu's house and started staying at his friend's house on Staten Island. Respondent does not know the address where he is staying. At his deposition, Respondent testified that he slept at Yu's house the entire time from late 2013 through the summer of 2015.

After Yu testified at trial [FN1] , Respondent changed his testimony and alleged that said when he wasn't at Yu's during the 2013 to 2015 period, he was "frequently" at Brian's house. However, Yu testified Respondent and Lam were only there three or four days per week, or approximately 50% of the time. Where Respondent and Lam were living, sleeping, eating, bathing since 2013 has yet to be disclosed in any forthright fashion.

Respondent acknowledged that he owns three homes in Jamaica Queens. In addition to those three homes, a fourth house in Jamaica located at 81-28 168th Street, Jamaica New York was owned by Respondent's parents. Respondent's father died in 2010 and the home was transferred by deed to Respondent as trustee in 2013. Respondent testified at trial that he keeps his car parked at this house. This contradicts the testimony at his deposition where he testified he parked his car "nearby" to where his older sister and her husband live (Ex 6, p 45).

In February 2013, Petitioner's counsel issued a letter to Respondent alleging that since he was not living in the Subject Premises and only using it as storage, he was required to vacate (Ex 12). Respondent wrote back in April, denying the claim that the Subject Premises was used for storage and stating that " Landlord and I are doing construction work in my apartment (Ex 11)." No where in this letter does Respondent ask for repairs or put Petitioner's counsel on notice of any conditions requiring repair.

In January 2015, in response to the Golub Notice, Respondent's counsel wrote to Petitioner's counsel asserting that Respondent was living in the Subject Premises with Lam and their son and that they "sometimes" slept out of the apartment due to a gas leak and lack of heat (Ex R). These assertions were established as untrue at trial where Respondents acknowledge being out of the apartment since late 2013 and that they did not live with their son nor even know the location where their son was living.

Respondent testified that he did not make written complaints to the landlord because he did not know who the landlord was or where to direct written complaints. This testimony was not credible, was contradicted by Respondent's own prior testimony at trial, and by the correspondence in the record. Respondent testified that Petitioner's contractors came to the Subject Premises on many occasions to do repairs, but Respondent could not recall specific dates.

Respondent testified that for the past three or four years his daughter has lived with a friend in Brooklyn, but he did not know the address where she was living. Respondent testified that his son also lives with a friend, but he does not know where and that his son rarely comes home. Respondent testified that he claimed them as deductions on his tax returns because even though they had moved out, he was still supporting them. Respondent did not explain how he supports them when he doesn't know where they live, and "rarely" sees them. Respondent testified that Lam and their children don't get along, and that was why Lam did not know where they lived. Respondent testified that he asked his children where they were living and they refused to disclose it to him.

The court did not find Respondent to be a credible witness.

Szehon Yu (Yu), who resides at 32 Monroe Street, Apartment Bi2 in Manhattan, was also called as a witness by Respondent. Yu is a retired police officer and is married to Respondent's cousin. Yu testified that Respondent and Lam started to sleep in his apartment in late 2013, and that they continued to do so through the summer of 2015. Yu testified that Respondent stopped staying with him because Respondent had another friend that could put him up more comfortably. This explanation makes no sense when considered in light of Respondent's testimony that he had been spending the balance of his time at Brian's house since the inception of his stay at Yu's apartment.

Yu lives in a complex known as Knickerbocker Village and is the tenant of record for his apartment. Knickerbocker Village provides regulated housing where families with a qualifying income are provided with relatively modest rents. Yu has lived there for over 20 years. Yu is [*5]required to file annual income affidavits listing household occupants, but testified he did not list Respondent and Lam, because they were not living at his apartment, they were just sleeping there.

Yu's testimony contradicted that of Respondent and Lam in that Yu testified that they were not sleeping at his apartment every night but estimated they stayed there three to four nights per week, and were generally not at Yu's apartment on the weekend. Yu does not know where Respondent and Lam slept on the other nights, Yu never asked them and they never volunteered the information. Yu testified that a key card was necessary to enter his building and that he had never provided Respondent or Lam with such a key card and they could only enter with him or if he was already at home.

While Yu was a credible witness, it was clear that he was uncomfortable testifying about the details of Respondent and Lam's occupancy of the Monroe Street apartment, and that he was concerned about his tenancy being impacted by any determination that Respondent and Lam had been living with him for an extended period.

LQ was the first rebuttal witness called by Petitioner. LQ was a property manager for Petitioner from early 2013 through mid to late 2015. There are a total of eight apartments in the Subject Building, only four of which were occupied during the period LQ worked as a managing agent.Part of LQ's job was to make sure HPD violations were corrected.

LQ received no requests for repairs from Respondent or Lam in 2013 or 2014.

LQ was aware of outstanding violations from 2009. These violations were corrected in April 2014. There were no additional violations issued for the Subject Premises until 2015, after this proceeding was started. When LQ started as managing agent, Petitioner was consistently seeking access to clear the 2009 violations and that it was difficult to get Respondent to agree to access dates. LQ wrote seeking access in March 2014 (Ex T) and Respondent gave access in response to this letter. Petitioner's contractors got into the Subject Premises and later advised LQ that the work was finished. Neither Respondent, nor Lam made a request for additional repairs to Petitioner. Later in the year, Petitioner sought access for the HPD to inspect and confirm that the violations had been corrected (Ex Z2 ). HPD could not get access on September 3 or 10 in 2014. After a second dismissal request to HPD by Petitioner, Respondent did provide access but this was not until February 2015.

LQ recalls Con Ed turning off the gas to Respondent's stove. Tenants complained of a smell of gas, Con Ed came, found a leak and turned off the stove. LQ thinks it was other tenants not Lam who complained. After gas was turned off, it was necessary to replace the stove. LQ spoke to Lam several times to set up access for the new stove. Lam told LQ she said she wasn't ready for the new stove and would let LQ know when she was ready. Lam said she had an electric stove and she had no room for the new stove Petitioner wanted to install. The new stove was put in around February 2015 as a result of a complaint to HPD and gas was restored.

LQ lacked first knowledge of the conditions in the Subject Premises, but has seen some HPD complaints regarding the Subject Premises. Respondent did not complain to Petitioner about the broken stove, rather LQ was chasing Respondent to install it.

LQ was questioned about the violations issued in February 2015 by HPD (Ex X). Petitioner immediately sent workers to correct the violations but had a hard time getting Respondent's to provide access. Most of the violations were corrected in 2015. There is a water heater inside the Subject Premises. It is constantly switched off, presumably by Respondent or Lam, resulting in violations for lack of hot water. Petitioner corrects the violations by gaining [*6]access and switching it back on. LQ is not sure what was done regarding the March 2015 violation for illegal heating apparatus.

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 ...

(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) of this title;

(4) Subletting of the housing accommodation.

Petitioner established at least two of these elements at trial. Respondent lists another address on his driver's license, car registration and various mortgage documents and Respondent and Lam have not occupied the Subject Premises for actual living purposes since at least late 2013, or well over a year prior to the issuance of the golub notice.

The essence of the nonprimary residence claim is that the tenant lacks an "ongoing, substantial, physical nexus with the controlled premises for actual living purposes (Emay Props. Corp. v. Norton, 136 Misc 2d 127, 129)."

The facts in this case are difficult. On the one hand neither Respondent nor Lam offered credible testimony as to where they have been residing since late 2013. It is undisputed that they have not used the Subject Premises for eating, sleeping or bathing since that date. Respondent and Lam have substantial means and own three homes in Jamaica Queens along, with the home which Respondent owns as trustee in Jamaica, which he asserts his elderly mother resides in alone. Respondent's mother was not called as a witness at trial. Neither of Respondent's children were presented as witnesses at trial. Nor was Respondent's "friend" Brian called as a witness even though Respondent's latest version of the facts is that from late 2013 to the summer of 2015, he spent about half the time sleeping at Brian's house, and he and his wife have been there full time since the summer of 2015. It is clear that neither Respondent nor Lam were forthright with the Court about where they have been living since late 2013.

The testimony of Respondent and Lam was just not credible, their documentary submissions were minimal and overall it is impossible for the court to believe that a couple with an income on over $200,000 per year, who are themselves professional landlords, have been unable to get the Subject Premises repaired so that they could live in it. Moreover the picture of the Subject Premises entered into evidence does not show an apartment that is set up for living purposes, but shows a use more akin to a storage facility.

While it is clear that there were conditions in the Subject Premises, as early as 2009, [*7]which were a breach of the warranty of habitability and constituted violations of the housing maintenance code, these conditions were not the reason Respondent and Lam stopped living in the Subject Premises.

Toa Construction Co v Tsitsires (54 AD3d 109) was a nonprimary residence case where the trial court had explicitly found after inspection of the Subject Premises that the apartment was uninhabitable. However the Appellate Division held:

But, this litigation does not turn on the habitability of the apartment, or even on the nefariousness of the landlord; it simply concerns whether petitioner established that respondent did not maintain his primary residence there during the Golub period ...

(Id at 111-112). In Toa, the court concluded that while the apartment was in disrepair, and the landlord was culpable for allowing that to occur, the conditions of the apartment were not the reason the tenant did not live there. The court finds the same thing to be true in this proceeding.

Moreover, as in Toa, while Petitioner herein could not establish where Respondent and Lam are actually living, this does not preclude the court finding that Respondent and Lam did not primarily reside in the Subject Premises, because "... establishing that the tenant has an alternative primary residence is merely one way for the landlord to meet its evidentiary burden; it is not the only way (Id at 113)."

The terms of the Rent Stabilization Code do not require proof that the tenant maintain an alternative primary residence (see 9 NYCRR 2524[c], supra). A prima facie showing of nonprimary residence could be successfully made by simply by proof that a rent-paying tenant was absent from the apartment ...without the introduction of any information about where the tenant had gone (Id at 113).

The facts in this proceeding stand in contrast to those in 157 East 57th Street LLC v Birrenbach (16 Misc 3d 81). In that proceeding, the tenants had vacated because of a mold condition, but the tenants took all kinds of actions to get the apartment fixed including withholding rent. The "... tenants sought and obtained various forms of relief, including the imposition of substantial civil penalties against landlord, the issuance of a DHCR rent reduction order ... and a judicial finding that tenants were constructively evicted from their apartment between October 2000 and June 2002 (id at 82)." Moreover in that case the tenants had resumed occupancy of the apartment by the time of the trial.

Here, there is no credible evidence in the record that Respondent notified Petitioner of the request for repairs, or took any of the steps available to tenants seeking to have repairs made. Respondent did make complaints to HPD in 2009, however the violations from that time were acknowledged corrected by Respondent in his deposition testimony and it was Petitioner who sought access years later to have the premises inspected by HPD and the violations removed.

Most of the evidence pertaining to violations in the Subject Premises is based on HPD complaints made by Respondent or Lam after the commencement of this proceeding.

Only after the golub notice was issued does counsel for Respondent request repair in writing for the first time (Ex R). This letter contains several false representations including that Lam was only "sometimes" felt the need to sleep out of the apartment, that her son still lived there and that the stove and insufficient heat were the only conditions raised.

Even as of the date of the trial Respondents have not resumed occupancy of the Subject [*8]Premises for living purposes, and having been represented by counsel since at least January of 2015, Respondent has not brought an HP action for the correction of violations, has not sought any relief from DHCR and in his answer does not seek an order to correct.

Moreover there is no reason to believe that Respondent only stopped living in the Subject Premises in 2013. The electrical consumption in the Subject Premises is relatively low since at least 2010. Respondent first listed the Queens address on his drivers license as early as 2004. Respondent acknowledged in his deposition transcript that he and Lam renovated the home they purchased at 82-72 165th Street and stayed overnight at that home during the renovations (Ex 6, p. 39), although he claimed they would only stay for a night or two at a time "... but not long term." Similarly, Respondent acknowledged staying with Yu prior to 2013, stating that prior to 2013 " ... sometimes maybe in 20 something, since they fixed the apartment and raised a lot of dust, so we just did not stay there (Ex 6, p. 27)" and that during this period he stayed with Yu but "not long term."

In conclusion, the court finds that the preponderance of credible evidence at trial establishes that no later than 2013, Respondent and Lam stopped using the Subject Premises for actual living purposes and that through the date of the trial they acknowledge that they have not resumed living in the Subject Premises.

Based on the foregoing, Petitioner is awarded a final judgment of possession as against Respondent. The warrant of eviction shall issue forthwith, execution of the warrant is stayed through March 31, 2016.This constitutes the decision and order of the Court.[FN2]

Dated: New York, New York

February 19, 2016

__________________

Sabrina B. Kraus, JHC + Footnotes

Footnote 1:Yu was taken out of turn in the middle of Respondent's testimony.

Footnote 2:Parties may pick up exhibits, within thirty days of the date of this decision, from Window 9 in the clerk's office on the second floor of the courthouse. After thirty days, the exhibits may be shredded, in accordance with administrative directives.