Opinion
70168/02.
Decided April 5, 2004.
Petitioner commenced this holdover proceeding alleging that respondent, Susan Rosenthal abandoned her primary residence in New York in favor of a California residency. Respondent asserts that her primary residence has always been New York. The only issue before the court is whether respondent maintained her residence at the subject premises known as 300 West 106th Street, Apartment 62. To this issue the court responds in the affirmative.
Salient Facts
Susan Rosenthal has been a rent stabilized tenant since 1991 residing at 300 West 106th Street. She described her relationship with the petitioner as having been cordial and without incident. Her employment for many years continues to be in the publishing industry and doing free lance work with Scholastic. Towards the latter part of 1999 respondent accepted an assignment from Scholastic Entertainment, Inc., to work in California developing additional business ventures. Respondent contends that this was the reason for her temporary relocation to California. During her testimony at trial Ms. Rosenthal admitted that while on assignment in California she met and began to date Brett Hine, a named undertenant. In May of 2000 respondent determined that she would remain in California for a longer period of time than she had planned. Due to her continuing business and new social interests, respondent requested a sublease agreement for a period of one (1) year concluding in approximately April or May of 2001, which petitioner approved.
By early 2001 respondent's involvement with Mr. Hine had become more serious. Because of her personal involvement with Mr. Hine and a certain medical condition he contracted in late 2000, she asked petitioner for an extension of the existing sublease for one (1) additional year. In completing her second application for the extension of the sublease, respondent offered information regarding Mr. Hine's medical condition and his confinement to a California hospital for approximately one (1) year for treatment and recovery. The court concludes that the disclosure of Mr. Hine's medical condition was optional and need not have been detailed in the application to extend her sublease. She further advised Mr. Hecht (petitioner herein) in writing that she would try to return within six (6) months after the second sublet began. The extension of the sublease agreement was approved by petitioner and would terminate in May 2002. Petitioner's contention that respondent intentionally misled petitioner and that some of her actions amounted to the perpetration of a fraud on the petitioner is without foundation or merit.
It should be noted that prior to Ms. Rosenthal's California trip in November 1999 she shared her apartment with the other named undertenant, Andrea Worthman. When Ms. Rosenthal received the initial approval to sublet her apartment, she sublet to Ms. Worthman for the same monthly rent she paid petitioner. Based upon Ms. Rosenthal's testimony the parties had a clear understanding that when she (Rosenthal) returned to New York, Ms. Worthman would vacate the apartment. Ms. Worthman's vacatur was accomplished without incident or complication. When Ms. Rosenthal temporarily moved to California, all her furniture and clothes remained in her New York apartment as set forth in the sublet application.
Respondent and Mr. Hine were married in a California civil ceremony on October 5, 2001. In the fall of 2001, Ms. Rosenthal made arrangements with a New York OB/Gyn doctor for consultation and subsequent visits. In December 2001, Ms. Rosenthal and Mr. Hine sent wedding invitations to friends and relatives to join them for a renewal of their vows in June 2002 at White Pine Camp in the Adirondacks.
In early February 2002, three (3) months prior to the conclusion of her extended sublease, Ms. Rosenthal returned to the only home she believed was her primary residence located at 300 West 106th Street.
Discussion
At the outset it should be noted that petitioner consumed virtually 10 days of trial before resting its case. In attempting to prove its prima facie case petitioner relied solely on the testimony of respondents Susan Rosenthal and Brett Hine. Petitioner did not call any witnesses on its behalf, nor did petitioner testify.
On or about January 3, 2002, during the "window period" within which petitioner would otherwise have been required to send Respondent-Tenant Susan Rosenthal a renewal lease under Rent Stabilization Code ("RSC") 2523.5(a), petitioner caused to be served upon Rosenthal a notice of non-renewal (Petitioner's Exhibit F) pursuant to RSC § 2524.4 c) and § 2524.2 c) 2), informing her that petitioner did not intend to renew her lease upon its expiration on April 15, 2002 because of her failure to occupy the subject apartment as her primary residence. (Also see § 2525.6 c) and (f) of the Rent Stabilization Code).
Ms. Rosenthal's testimony disclosed that petitioner approved the sublease agreement commencing on or about May 2000 through May 2001. Prior to the expiration of that agreement respondent requested an additional one (1) year extension of the agreement through May, 2002, due to Mr. Hine's serious medical condition and other factors affecting their lives. Petitioner approved the application for the sublease extension without question.
When petitioner approved the original sublease and the extension agreement the intent and understanding between the parties was that respondent would return to her primary residence in New York on or before the expiration of the extension agreement as stated above, and respondent returned to New York in February 2002 which was approximately three (3) months prior to the termination of the agreement.
Since petitioner failed to call any witness to testify to the facts surrounding the agreements or corroborate its version of the facts, the court concludes that no direct proof was presented to support petitioner's holdover proceeding based upon non primary residence. Seizing on minor technicalities and a few inconsistencies in respondent's testimony is not demonstrative proof that respondent intended to make California her primary residence.
Applicable Law
Although the term "primary residence" is generally regarded in terms of the physical occupancy of a particular apartment, a myriad of other facts and circumstances must be considered when determining what constitutes a primary residence. Intent is certainly an important consideration. It is undisputed that respondent temporarily relocated to California for professional and personal reasons. Her temporary relocation to another dwelling place does not, by itself, under the circumstances herein, establish that her New York residence is not her primary residence. (Gracie Townhouse Assoc. v. King, NYLJ, May 6, 1991 p. 24 col 4 [AT 1st]; 9554 NY Apartment Associates v. Hennessey, 184 Misc 2d 527, 530).
It is well settled that in a non primary residence matter, the petitioner has the burden of proof to show that the respondent maintains his or her primary residence at a location other than the subject premises (Sharp v. Melendez, 139 AD2d 262 [1st Dept 1988, lv denied 73 NY2d 707; Weinreb v. Martin (2000 NY Slip. O. 50452). In the case at bar, petitioner failed to advance documentary or testimonial evidence to support its theory. It is conceded that there were a few minor inconsistencies in Ms. Rosenthal's testimony. However, most of these inconsistencies were predicated on petitioner's second guessing of respondent's choices and the decisions she made. Petitioner's argument that respondent obtained petitioner's consent to the initial subletting and extension by means of fraud, thereby rendering petitioner's consent a nullity, is simply without merit or proof. Confusing as the language of the sublet application might have been to respondent, the court concludes that she completed the application in a truthful manner and, like any other individual she may have hedged her decisions due to personal considerations but not with the intent to deceive or defraud.
Petitioner's further argument suggesting that respondent was attempting to create a "paper trail" by putting the subject premises on her tax returns while taking tax deductions for the use of "so called time" in California for 2000 and 2001 is simply inaccurate. Clearly, it would be inaccurate and misleading when completing her federal tax returns to take those deductions from the subject premises in New York. She legitimately claimed part of the premises at Crest Drive in California as "Expenses for Business Use. . . . ." This factor alone or other individual factors is not a clear indication of her intention to select California rather than New York as her primary residence. The fact that she listed Crest Drive as her California address on a number of 1099 forms is consistent with her testimony and is a common sense approach, i.e. to list part of the Crest Drive Apartment as tax deductions for 2000 and 2001.
All important documents, including but not limited to tax returns, financial and banking statements, medical records and statements, pharmaceutical purchases listed her temporary address at Crest Drive, California. Respondent admits that she caused a change of address in order to keep abreast of financial and/or business records. Petitioner cannot seriously argue or second guess her motivation in making decisions which affected her personally or her husband. Some of respondent's decisions at first blush might convey the impression of rescinding her New York nexus. However, a careful review of the substance of her testimony clearly evinces the opposite. Respondent, a bright, articulate and sensitive woman conducted herself in a manner which was commensurate with her station in life, the medical circumstances of her husband, and in accordance with the venue she temporarily selected for business and personal reasons.
To reiterate what this court previously stated, during her absence from New York, respondent previously had a roommate, Ms. Worthman, to whom respondent legally subleased the apartment. The sublease was initially approved and so was the application to extend the sublease. The fact that Ms. Rosenthal forwarded wedding invitations in December 2001 to friends and family for a welcome and reception in June 2002 is further evidence of her intent to return to New York and resume residency with her husband at her primary residence. (See Weinneb v. Martin 2002 NY Slip Opinion 504 52 U; 247 Associates v. Rodriguez, NYLJ, May 28, 1998, p. 28 col 3).
Respondent's undisputed testimony was supported by documents showing that for the years in question (1999-2002) Ms. Rosenthal filed her tax returns at the subject apartment and paid her New York State and City taxes, in the same manner as she had throughout her tenancy. Also, for the entire relevant time Ms. Rosenthal was registered to vote at the subject apartment; had a driver's license in New York at the subject apartment (and renewed that license during the sublease); had a passport issued in New York; had a telephone at the apartment always in her name showing the subject apartment as her billing address; for all but three months when there was a mail problem. Con Edison bills were sent to Ms. Rosenthal's address at the apartment.
Ms. Rosenthal testified that she has worked at various divisions of Scholastic on and off for roughly a decade and this work continued after her return to the apartment on February 1, 2002. Nonetheless, petitioner's counsel stated that shortly after the sublet began, Ms. Rosenthal's project (for which she went to California) did not go well and instead she did work independently with Scholastic. Petitioner made no showing that this had any effect on Ms. Rosenthal's intent to return to the apartment. In fact respondent's exhibits show Scholastic contracts from 2000 right through 2002. Even petitioner's exhibits EEEE, FFFF, GGGG, HHHH and IIII show various work done by Ms. Rosenthal for Scholastic during the sublet. Moreover, the only evidence offered on petitioner's prima facie case showed that Ms. Rosenthal never worked for a California company and received all her work from New York offices.
The undisputed evidence showed that Ms. Rosenthal's name was added to Mr. Hine's six-month California lease running from October 1999 through March 2000 because that landlord wanted more than just Mr. Hine's name on the lease. That six-month lease was never renewed. During this lease Ms. Rosenthal was in her New York apartment seven to ten days per month. Petitioner called no witnesses to contradict this. The predicate notice also makes no claim that Ms. Rosenthal did not primarily reside in New York during this time. And this lease having ended before the sublet even began, left Ms. Rosenthal with nothing but a month-to-month rental in California during her one year and nine month sublet.
In a nonprimary residence case where a landlord did not call a witness over whom it had control the court held:
When a party fails to appear as a witness in a proceeding, the court may draw the strongest inference against him that the opposing evidence and the record permit. Commissioner of Social Services v. Philip D.G., 59 NY.2d 137, (1983); Noce v. Kaufman, 2 NY2d 347, 161 N.Y.S.2d 1 (1957). The usual inference drawn is that the testimony of the party would be unfavorable to his or her position. This negative inference also arises when the party fails to call a witness within its control who could be expected to have knowledge about a material issue in the case and provide noncumulative testimony." 9554 NY Apartment Associates v. Hennessey, 184 Misc 2d 527, 707 N.Y.S.2d 794 (2000).
In view of petitioner's failure to call any witnesses other than Ms. Rosenthal and Mr. Hine the court draws the following negative inferences against petitioner: 1) Ms. Rosenthal indeed conferred with Mr. Hecht before the nonrenewal notice that she was returning. Petitioner did not provide any evidence that Ms. Rosenthal moved back in response to the nonrenewal notice. In fact, the opposite is true — the nonrenewal notice was served after Ms. Rosenthal notified the landlord that she was returning to New York; 2) The petitioner allowed the sublet to go past the expiration of the overlease, thereby agreeing that Ms. Rosenthal did not have to reoccupy the apartment until May 15, 2002 and petitioner did not sustain its burden since Ms. Rosenthal moved back on February 1, 2002; (Weinreb v. Martin, supra); 3) Contrary to petitioner's argument, the landlord was not deceived by any of Ms. Rosenthal's conduct, nor any of the information in the sublet application. Petitioner never asked for additional information regarding the sublet applications and did always reach Ms. Rosenthal with the contact information she provided; 4) The lack of personal information concerning Ms. Rosenthal's relationship with Mr. Hine played no part in petitioner's decision to allow the sublet. Furthermore, information concerning this relationship was in fact disclosed in the second sublease application and petitioner still approved the sublease application. In that same application, respondent continually emphasized the fact that she would be returning to New York.
Conclusion
It is clear from the foregoing that landlord failed in its burden to establish that respondent abandoned the subject apartment as her primary residence. There was no direct proof to substantiate petitioner's arguments. For the foregoing reasons the court grants respondent a final judgment dismissing the instant holdover proceeding with prejudice.
Petitioner is directed to offer respondent a rent stabilized renewal lease within 30 days from the date of entry of this order. The court commends the attorneys for their excellent presentation during trial in representing their respective clients and for their excellent legal briefs.
This constitutes the decision and order of the court.