Opinion
No. L & T 58680/2010.
02-13-2015
BEACON 109 245–251 LLC, Petitioner–Landlord v. Marjorie VAN DYKE, Respondent–Tenant.
Horing Welikson & Rosen, PC, by Leonard R. Kaplain, Esq, Williston Park, Attorneys for Petitioner. SRO Law Project, by Clint J. Guthrie, Esq., New York, Attorneys for Respondent.
Horing Welikson & Rosen, PC, by Leonard R. Kaplain, Esq, Williston Park, Attorneys for Petitioner.
SRO Law Project, by Clint J. Guthrie, Esq., New York, Attorneys for Respondent.
Opinion
SABRINA B. KRAUS, J.
The underlying summary holdover proceeding was commenced by BEACON 109 245–251 LLC (Petitioner) against MARJORIE VAN DYKE (Respondent) the rent-stabilized tenant of record of the Subject Premises, based on the allegation that Respondent has not maintained the Subject Premises as her primary residence. Respondent is married to Joseph Haske (Haske) and the issue at trial is whether she primarily resided with Haske or at the Subject Premises for the relevant period.
PROCEDURAL HISTORY
Petitioner issued a notice of non-renewal dated November 30, 2009, which asserted that the Respondent had not been seen at the Subject Premises for at least six months, had vacated and was residing at 121 Wooster Street, Apartment 5F. The proceeding was initially returnable March 24, 2010.
Respondent appeared through counsel in April 2010 and moved for dismissal of the proceeding, alleging the predicate notice was defective as it, failure to state a cause of action and that Petitioner had waived the right to proceed by acceptance of rent. Pursuant to a decision and order dated October 7, 2010, the court (Spears, J) denied the motion and held that the predicate notice was valid, and that the acceptance of rent was inadvertent.
In November 2010, Respondent moved for re-argument of that portion of Judge Spears' decision that found the acceptance of rent was inadvertent. In May 2011, Judge Spears issued a decision denying the motion for re-argument.
On July 25, 2011, Respondent filed an answer asserting a general denial, procedural and jurisdictional defenses, some of which were the subject of the aforementioned motion practice, and breach of warranty of habitability.
In October 2011, Petitioner moved for discovery. On November 9, 2011 the motion was granted pursuant to the parties stipulation, and the proceeding was marked off calendar for discovery. In July, 2012, Respondent appeared for a deposition.
In February 2013, Respondent moved for summary judgment. This court denied said motion pursuant to a decision and order dated April 1, 2013, and scheduled trial for May 2, 2013.
On August 5, 2013, the proceeding was transferred to the Expediter's Part for assignment to a trial judge.
On February 10, 2014, the proceeding was assigned to Part L for trial. The trial commenced on said date with the marking of exhibits and continued on February 11, 2014, and July 7, 2014.On July 7, 2014, Respondent rested. Petitioner then moved the court for a negative inference based on Respondent's failure to call Haske as a witness. In response to the request for a negative inference, Respondent made an application to reopen its case and for a continuance so Respondent could call Haske as a witness. This application was granted by the court, and the proceeding was adjourned to September 10, 2014, for continued trial.
On September 10, 2014, Respondent made another application to recall Respondent as a witness to correct Respondent's testimony based on information counsel discovered while preparing Haske for his testimony. The application was granted by the court, and the trial continued on September 10, 2014, and concluded on January 28, 2015.
There were two in limine motions addressed by the court during the trial related to the admission of video tape evidence.
On February 13, 2015, the parties submitted post trial memoranda, and the court reserved decision.
FINDINGS OF FACT
Petitioner is the owner of the Subject Building pursuant to a deed dated May 13, 2009 (Ex 1). Respondent is the rent-stabilized tenant of record for the Subject Premises pursuant to a lease dated February 16, 2001 (Ex 4a), which was most recently renewed in December 2008 for a term through and including February 28, 2011 (Ex 4b).
The legal registered rent for the Subject Premises as of April 2013 was $705.56 (Ex 2).
The subject building is a 5 story walk up with a total of 15 units.
The Subject Premises is a one bedroom apartment.
Kenneth Friedman (Friedman) testified for Petitioner. Friedman is a managing agent working with the building since 2009. Friedman knows Respondent and identified her at the trial. As of the time he testified Friedman had met Respondent on approximately five occasions, mostly coming and going from the building. Freedman went to the Subject Premises at Respondent's request in 2009 or 2010 regarding a repair. From May 2009 through May 2011, Friedman was at or around the building for 12 hours or more per day, and he saw the other tenants in the building with greater frequency during this period then he saw Respondent.
Respondent used to have a land line telephone and cable service at the Subject Premises. Respondent discontinued both unities in or about 2008. Respondent maintains a cellular telephone for which the billing address is listed at 99 Van Dam Street. The account is a family plan which Respondent shares with Haske.
Zola Farquson (Zola) testified at trial. Zola was subpoenaed regarding the Con Edison records for the Subject Premises. From 1980 until 2010 the Con Ed account for the Subject Premises was in the name of Michael J. Fritz (Fritz). From March 12, 2010 forward the Con Edison account for the Subject Premises was in Respondent's name.
Respondent succeeded to the tenancy of Fritz the last tenant of record pursuant to a resolution of a prior proceeding.
Zola testified that from 2008 forward the electrical usage in the Subject Premises was minimal and consistent with the use of a refrigerator or a single light bulb left running (Ex 6).
Mirsad Metovic (Metovic) testified for Petitioner. Metovic was the Superintendent for the building until from 2008 through 2012. Metovic was also the Super for the building under a prior owner. Metovic worked for Petitioner and was responsible for 22 buildings. Metovic lived in the subject building on the 5th floor during this period. Metovic maintained an office as Super at 235 West 109th Street which is approximately 150 feet away from the subject building. Metovic spent most of his time initially addressing complaints in the buildings he worked in and in attempting to clear up outstanding violations.
Metovic testified he had seen Respondent on approximately two occasions before he started working for Petitioner. Between 2009 and 2010, Metovic saw Respondent approximately two times per month, and substantially less then he saw most other tenants on the block.
Petitioner submitted the deposition transcript of Respondent in evidence (Ex 8). At her deposition Respondent testified that Haske, her boyfriend that lives at 99 Van Dam Street in Manhattan. Respondent testified that she slept at the Van Dam Street apartment between two to four nights per week. Respondent testified that had been true since 2002. Respondent keeps personal belongings including clothes and toiletries at the Van Dam Street apartment.
The Van Damn Street apartment is a regulated unit covered by loft law, it's a duplex with an internal stair case, a studio, sleeping area and bathroom on the first level, and a living room, kitchen, bathrooms and bedroom on the upper level. Haske is the regulated tenant of record for said premises.
Respondent moved into the Subject Premises in 1982, and lived with Fritz who was her boyfriend at the time. From 1984 to 1988, Fritz was in and out of the Subject Premises.
Respondent is self employed and has been for 32 years. Respondent is a visual artist contract printer of limited etchings and prints. Respondent worked as an adjunct faculty member for LaGuardia Community College from 2010 and otherwise runs a small printing business.
From February 2008 through February 2010 Respondent's work hours varied. Typically Respondent does not leave for work until 10:30 or 11 am, and she rarely return home before 8 or 9 pm. Respondent testified that when she is not working she will sometimes not leave the Subject Premises at all.
Respondent listed the Subject Premises as her residence on her tax returns for 2008 through 2010 (Exs B–D, K). Respondent is registered to vote from the Subject Premises (Ex A). Respondent has never had a driver's license. Respondent has credit cards and bank accounts and receives most statements at the Subject Premises.
Respondent pays the rent for the Subject Premises. Haske does not contribute to this. Haske pays the rent for the Van Dam apartment and Respondent does not contribute to this.
Respondent testified that since 2008 she is st the Subject Premises almost daily, and that she stays there a few nights a week with Haske, and the rest of the week they stay at the Van Dam apartment. Respondent met Haske in 1999 and Haske has lived at the Van Dam Street apartment since 1978. Haske is also an artist.
Haske has three children, two of which lived with him in 1999, but no longer live with him.
Haske and Respondent have a joint money market account related to a line of credit for a home they use in Gilboa, in upstate New York. Haske and Respondent regularly spend time together in the upstate home. They go there once ever six weeks and in the summer they try and get there as much as possible. In the Summers of 2008 and 2009, they are upstate for five to ten days at a time. Respondent pays for gas for their trips upstate.
Haske and Respondent spend every night together either at the Subject Premises or at the Van Dam Street apartment. Respondent testified on direct that she was not married and had never been married.
Respondent testified does not really know her neighbors at the subject building.
The court did not find Respondent to be a credible witness.
On September 10, 2014, Respondent was recalled to the stand by her attorneys, and acknowledged that she had perjured herself on her direct testimony by lying about the fact that she and Haske had married in February 2013. Respondent testified that she lied because she was taken aback by the question regarding her marital status and that no one had ever asked about her marital status before. Respondent testified that her marriage to Haske was a “family secret” which not many people knew about, including her own mother and family. Respondent testified that she did not tell her mother and family about the wedding because they are very religious and would insist on a big “hoopla.”
Haske and Respondent were married at the Metropolitan Museum of Art, at the Temple of Dendur. The wedding was officiated by a friend and attended by Haske's friends and business colleagues.
Haske and Respondent have been intimate for quite a few years. In addition to being an artist, Haske teaches painting and design. Haske finds it inconvenient to stay at the Subject Premises because all of his belongings are at the Van Dam Street apartment, and he workd within walking distance of the Van Dam Street apartment.
Petitioner offered video tape evidence on its rebuttal case. While presumably this evidence shows that Respondent is not credible based on lack of nights the video shows Respondent slept in the Subject Premises, given that the tape covers a period after the golub period, the court accords said evidence little to no weight. In any event, as noted above, Respondent's credibility was destroyed by her admitted perjury.
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 Rent Stabilization Code in defining primary residence provides that no single factor shall be solely determinative, and that evidence which may be considered in determining whether a housing accommodation is occupied as a primary residence includes occupancy of the housing accommodation for an aggregate of less then 183 days in the most recent calendar year.
To prevail in this proceeding, Petitioner must establish that during the two year period prior to the expiration of Respondent's lease, Respondent did not occupy the Subject Premises as her primary residence for actual living purposes (Glenbriar Co. v. Lipsman 5 NY3d 388, 392 ).
Petitioner met its burden of establishing a prima facie case based on such evidence as Respondent's own deposition testimony, the Con Edison records, the discontinuance of a land line phone and cable service for the Subject Premises (Janco Realty Corp. v. Lee NYLH July 16, 1987, p. 11, col 1 lack of use of utilities is probative of time spent by tenant in apartment ), the fact that Respondent was rarely observed at the Subject Premises and the fact that Respondent regularly slept at the Van Dam Apartment, with Haske, who has now become her husband. Having done so, the burden the shifted to Respondent to establish that she maintained a physical nexus to the Subject Premises for actual living purposes, although “... the ultimate burden of persuasion ...” remains on Petitioner [Patchin Place, LLC v. Fox 3 Misc.3d 127(A) ].
While Respondent has carefully maintained a paper trail listing the Subject Premises as her primary residence on official documents, it is uncontested that Respondent and Haske have joined their lives together and sleep together every night in the same place and have done so, according to Haske's testimony for well over a decade.
Ultimately, the determination as to whether Respondent has maintained the Subject Premises as her primary residence, where it is acknowledged that she essentially divides her time between two regulated units both in Manhattan, largely comes down to the credibility of Respondent. Given that Respondent has admitted to offering false testimony regarding her marriage to Haske, and given the focus of the ligation on the nature of their relationship and the manner in which they live, the court finds Respondent's credibility has been compromised beyond repair.
Moreover, Respondent failed to call a single witness to support her testimony. No friends or neighbors were called to testify regarding the time they spend with Respondent in the Subject Premises (Harran Holding Corp v. Fowler NYLJ Apr. 28, 1987, p5, col 4 neighbors testimony of tenant's presence may be considered in determining primary residence ). Respondent presented no evidence of celebrating any occasions in the Subject Premises like birthdays, etec. Even Haske, was only reluctantly called by Respondent after Petitioner's request for a negative inference.
The Court does not believe that Respondent and Haske sleep most nights at the Subject Premises rather than their duplex loft on Van Dam Street, rather the court believes that they live together in the Van Dam Street apartment, and that Respondent wishes in addition to maintain her tenancy in the Subject Premises.
In specifically excluding housing accommodations not used as the tenant's primary residence from those to which a local declaration of emergency may apply, the Legislature has made clear its intention that regulatory protection should not be available where the tenant's claim to the subject premises is based on less than the need for a place to call home. This intent is entirely consonant with the public policy sought to be advanced, which is to promote the availability of affordable housing units ... Public policy is not advanced by permitting housing units to be held, partly or wholly unutilized by tenants whose interest is (other) than affordable housing (Park South Associates v. Mason 123 Misc.2d 750, 753 ).
Respondent's occupancy of the Subject Premises does not constitute the type of ongoing substantial physical nexus for actual living purposes that would justify affording her tenancy continued protection under rent stabilization (Emel Realty v. Carey 188 Misc.2d 280, 282citing Berwick Land Corp v. Mucelli 249 A.D.2d 18 ).
CONCLUSION
Based on the foregoing, Petitioner is awarded a final judgment of possession as against Respondent. The warrant of eviction may issue forthwith, execution is stayed through March 30, 2015 to afford Respondent time to remove her belongings from the Subject Premises.
As there was no evidence of any other occupants the proceeding is dismissed as against Fritz and John and Jane Doe.
This constitutes the decision and order of this court.