Astor Row Hous. Dev. Fund Corp. v Rodriguez
Annotate this CaseDecided on November 5, 2018
Civil Court of the City of New York, New York County
Astor Row Housing Development Fund Corporation, Petitioner,
against
Santiago Rodriguez, Respondent, Juanita Rodriguez, Respondent-Undertenant.
252763/2015
Counsel for Petitioner, Astor Row Housing Development Fund Corporation
Carla M. Seals, Esq.
Borah, Goldstein, Altschuler, Nahins & Goidel, P.C.
377 Broadway
New York, New York 10013
212-431-1300 ext. 701
Respondent Santiago Rodriguez appeared pro se
Counsel for Respondent-Undertenant, Juanita Rodriguez
Jessica Levy
Local 237 Welfare Fund
International Brotherhood of Teamsters
216 West 14th Street
New York, NY 10011
212-924-1220
Ta-Tanisha D. James, J.
This is a summary holdover proceeding commenced by Petitioner against Respondent Rodriguez and Respondent-Undertenant Rodriguez seeking to recover possession of the subject premises located at 38 West 130th Street, No.3, New York, NY 10037 (hereinafter "the subject premises") on the basis that Respondent does not maintain the subject premises as his primary residence.[FN1] Following motion practice, an extended discovery period and numerous attempts to settle the matter, trial commenced in May 2018 and was adjourned over several dates before [*2]concluding on October 9, 2018.
After review of the trial testimony, the documents submitted into evidence, the written summations submitted, as well as the oral summations, for the reasons set forth herein, the Court finds that Petitioner failed to meet its burden proving by a preponderance of the evidence that Respondent failed to maintain the subject premises as his primary residence.
Respondent owns two other properties located in the Bronx, New York and Petitioner contends that Respondent resides at one of those locations and not at the subject premises. In support of this, Petitioner elicited testimony that Respondent's children reside at his other properties. However, Petitioner maintained on cross examination and during his direct testimony that he does not reside with any of his children or their mothers and that he visits with his children and attends their activities before returning to the subject premises.
In further support of its contention that Respondent does not maintain the subject premises as his primary residence, Petitioner presented evidence that the regulatory agreement for one of Respondent's other properties, located at 1775 Morris Avenue, Bronx, NY, requires that Respondent maintain that property as his primary residence as well. Respondent acknowledged that provision but maintained that he does not use that property as his primary residence, instead residing primarily at the subject premises. Although the Court does find it notable that Respondent owns two properties with the requirement that he maintain each as a primary residence, that alone does not prove that Respondent failed to maintain the subject premises as his primary residence.
Petitioner also introduced numerous documents into evidence, including Respondent's voter registration, driver's license and motor vehicle registrations, pay stubs, federal tax returns and mail verifications. Those documents reflect Respondent's addresses as that of the subject premises. Some documents, such as older pay stubs and past voter registrations, list the address of one of Respondent's properties in the Bronx, however Respondent testified that he has used both addresses at times and has updated records to reflect the address of the subject premises. Respondent himself provided substantial documentary evidence in the form of tax returns, bank statements and utility bills, inter alia, which reflected the subject premises as his address.
Lastly, in support of its proposition that Respondent does not primarily reside at the subject premises, Petitioner elicited testimony from other residents of the subject premises, as well as a neighbor who resides on the same block, who testified that they do not see Respondent at the subject premises or in the neighborhood and only see Respondent-Undertenant Rodriguez and her boyfriend, who also resides there. In response, Respondent testified that he leaves for work early in the morning and returns late in the evening after finishing work and spending time with his children.
The Court is guided by the statutory factors set forth in the Rent Stabilization Code regarding how to establish a tenant's primary residence. The initial burden is on the landlord to demonstrate by a preponderance of the evidence that the tenant was not using the apartment as the primary residence during the relevant time period. See Glenbriar Co. v. Lipsman, 5 NY3d 388, 804 N.Y.S.2d 719 (2005). See also Draper v. Georgia Props., 94 NY2d 809, 701 N.Y.S.2d 322 (2nd Dept. 1999). The burden then shifts to the tenant to rebut the landlord's evidence and prove that he or she has a substantial physical nexus to the apartment. See Glenbriar Co. v. Lipsman, Id.
Petitioner argues that it is incredulous to believe that Respondent shares an apartment with his sister, her boyfriend and at times his sister's adult child, when he owns two other [*3]buildings and his children reside at one of those buildings. Petitioner further argues that the documents which show the subject premises as Respondent's address should not be afforded great weight as the address was self-reported by Respondent and any changes to the address to reflect the subject premises was done due to the instant litigation.
Respondent maintains that he regards the other two properties as his businesses and that any mail he receives at those addresses is business related. Moreover, the fact that Respondent updated records to reflect the address of the subject premises does not necessarily mean that he did so solely in contemplation of litigation, as it is permissible to update records, and Respondent changing the address could have been part of his efforts to cure prior to this action commencing. See Peck v. Wolf, 157 AD2d 535, 550 N.Y.S.2d 9 (1st Dept. 1990) (changes to voter and automobile registration not fatal to primary residence claim).
Respondent also maintained throughout his testimony, both on direct and cross-examination, that he is not presently in a relationship with any of the mothers of his minor children and while they reside at his other properties he does not reside there with them. Additionally, Respondent asserted that he has tenants who live at his other properties, therefore it is reasonable that Respondent would share the subject premises with his sister and others so as not to occupy a rental unit himself, thereby losing a source of income. The applicable case law is clear that a nonprimary residence claim cannot be sustained based on the fact that a respondent owns property elsewhere. See 310 E. 23rd LLC v. Colvin, 41 AD3d 149, 837 N.Y.S.2d 134 (1st Dept. 2007); Hudson St. Equities Group v. Escoffier, 45 AD3d 371, 845 N.Y.S.2d 296 (1st Dept. 2007).
Lastly, the Court does not find the testimony from Respondent's neighbors to be dispositive as to whether Respondent primarily resides at the subject premises. The tenants called as witnesses by Petitioner mainly testified that they do not see Respondent around the building or in the vicinity. One witness further testified that given the location of her apartment she can hear when others enter and leave the building and she does not identify Respondent's footsteps among the ones that she hears. This testimony carries little probative weight and is insufficient, without more, to satisfy the landlord's evidentiary burden on the issue of Respondent's primary residence. See Rose Associates v. State Div. of Housing and Community Renewal, Office of Rent Admin., 121 AD2d 185, 503 N.Y.S.2d 13 (1st Dept. 1986) (testimony that tenant not seen in the building not dispositive on the issue of whether the tenant did in fact live there). In contrast, Respondent offered a reasonable explanation for his whereabouts and why he may not be seen around the building or in the neighborhood.
While the Court takes a negative inference of Respondent's failure to call Respondent-Undertenant as a witness on his behalf,[FN2] and the Court notes that though it was not Respondent's burden to do so, he did not call anyone to testify that he resides at the subject premises and not at either of his other properties, the Court finds that the evidence presented by both Petitioner and Respondent was equal. Petitioner did not introduce any dispositive evidence to show Respondent fails to maintain the subject premises as his primary residence. The Court is not persuaded by Petitioner's arguments as Petitioner's evidence was overwhelmingly speculative, and Respondent credibly rebutted much of what Petitioner offered. When the trial evidence weighs so evenly as not to preponderate on either side, the court must decide against the party with the burden. See 318 East 93, LLC v. Ward, 276 AD2d 277, 713 N.Y.S.2d 860 (1st Dept. 2000).
Accordingly, the Court finds in favor of Respondent and dismisses the holdover petition. The Court credits the testimony presented by Petitioner that Respondent has ceased paying maintenance and is in arrears and notes that the dismissal is without prejudice to Petitioner commencing a nonpayment proceeding against Respondent.
Petitioner's claim of illegal sublet as to Respondent-Undertenant Rodriguez is similarly dismissed and Petitioner's request for legal fees is denied.
This constitutes the Decision and Order of the Court.
Dated: November 5, 2018
New York, NY
Hon. Ta-Tanisha D. James
A.S.C.J. Footnotes
Footnote 1:Respondent and Respondent-Undertenant are siblings.
Footnote 2:See Noce v. Kaufman, 2 NY2d 347, 161 N.Y.S.2d 1 (1957).
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