Opinion
054481/09.
Decided April 16, 2010.
Karp Kalamotousakis, New York, NY, for petitioner.
Robert V. Ferrari, Esq., New York, NY, for respondent.
A bench trial in the instant matter took place before this Court on March 8, 2010. This matter concerns a holdover proceeding in which respondent has asserted as an affirmative defense, the fact that he is a successor tenant of his deceased mother who was formerly the rent controlled tenant of record in apartment 2M of the subject premises.
Upon the completion of the trial, the Court directed the parties to submit post-trial memoranda of law addressing the instant issue/defense. After a review of the memos presented, testimony adduced at trial, the exhibits submitted in evidence, the transcribed minutes of the trial, all relevant statutes and caselaw, the Court finds in favor of petitioner.
Testimony adduced at trial:
Respondent Frederick Gazzoli testified that following his divorce in 1999, he moved in with his mother, Sandra Gazzoli, in her apartment at 10 Downing Street. At that time, Sandra Gazzoli had written a letter to "Nancy" at Downing Management Corp, dated October 19, 1999, apprising her that respondent has permanently moved in with her as of October 14, 1999. Respondent testified that 10 Downing Street has remained his home since that time. Respondent testified that his employment has been rather diverse, requiring him to reside for certain periods of time in various countries. He was employed by World Food Program, a United Nations agency located in Rome, Italy from January 1998 through most of 2001. While living in Rome, he returned to New York four or five times per year to visit his mother at 10 Downing Street. From 2001 to 2002, he was employed by the United Nations Relief Work Agency For Refugees, and was living in Jordan.
Following his time in Jordan, he accepted the position of Auditor General for the Organization of Economic Cooperation and Development and lived in Paris, France from the later part of 2002 into 2008. Respondent was in Paris under a "fixed term contract" which were two three year contracts. He testified that he spent his vacations "almost always" in New York, visiting his mother four to five times per year.
Respondent also testified that it was his habit to return to New York every quarter (4 months), for approximately a week and a half and stay in the apartment every year during tax time (March or April), as well as July, August, Christmas and New Years. If he was required to attend a conference in the United States or South America, he would use that as an opportunity to also visit his mother. Furthermore, respondent's son frequently visited his grandmother during his father's absence.
Following Paris, respondent became employed by the International Union for the Conservation of Nature and Natural Resources in Switzerland in October of 2008. He lived in Switzerland until the death of his mother in December, 2008. When respondent took the job in Switzerland, he was officially retired from the United Nations since the age of 56 and was receiving a pension from his position in Paris. He testified that he frequently contemplated the prospect of retirement but that this would ultimately depend on his mother's situation. Due to her minimal Social Security payments, it was necessary for him to support her, including paying for her daily home care.
Respondent also testified that he and his family had engaged in frequent conversations regarding his mother's ability to continue living in her apartment. While the issue of a nursing home had been broached, the family honored her wish to continue to remain in her apartment, in close proximity to her friends. Respondent also testified that he had deliberately shielded his mother from any knowledge of existing financial problems. He testified that he was extremely concerned about the financial effects of his 40% salary decrease in his final position prior to his mother's death and that his only consideration in allowing the landlord to purchase the apartment back was his mother's well being.
Respondent further testified that he has always used an accountant located in New York. Additionally, he submitted various documents in the form of a driver's license, tax returns for the years 2006, 2007 and 2008; an "Annual Dividend Statement" from Metropolitan Life Ins. Co.; an "Anniversary Statement" from SBLI USA Mutual Life Insurance Company; several statements of an account with the United Nations Federal Credit Union and two Social Security Statement pamphlets which essentially confirm that he resided at 10 Downing Street, Apartment 2M, with his mother, the tenant of record of the subject premises for the requisite two year period. Conclusions of law:
The burden of presenting legally sufficient proof to establish primary residency rests with the party claiming succession rights ( see Gottlieb v. Licursi, 191 AD2d 256, 595 N.Y.S.2d 17 [1st Dept. 1993]; 68-74 Thompson Realty, LLC v. McNally , 71 AD3d 41 , 896 N.Y.S.2d 323 [1st Dept. 2010]). "Primary residence" is jurisdictionally interpreted as "an ongoing, substantial, physical nexus with the . . . premises for actual living purposes" ( Katz Park Ave. Corp. v. Jagger , 11 NY3d 314 , 317, 898 N.E.2d 17 [2008 ], quoting Emay Properties Corp v. Norton, 136 Misc 2d 127, 129, 519 N.Y.S.2d 90 [NY Sup. App. Term 1987]).
In order to qualify for succession rights under the governing regulations ( see Rent Stabilization Code [ 9 NYCRR] § 2104.6), respondent is required to show that he resided with the tenant in the housing accommodation as a primary residence for no less than a two year period immediately preceding his mother's death. To determine if this requirement has been met, one must look to "traditional indicia" which helps to establish primary residence. A driver's license, a voter's registration, tax returns, telephone and bank records, would all be considered competent evidence to establish a period of residency ( see 300 E. 34th Street Co. v. Habeeb, 248 AD2d 50, 683 N.Y.S.2d 175 [1st Dept. 1997]; Pavel v. Fischer, 21 Misc 3d 143(A), 800 N.Y.S.2d 225 (App. Term 2d and 11th Jud. Dists. 2008); Quan v. New York City Dept. Of Housing Preservation and Development, 70 AD3d 528, 895 N.Y.S.2d 75 [1st Dept. 2010]).
In the instant case, the Court finds that respondent has failed to successfully meet his affirmative obligation to establish succession rights to the subject apartment. The Court is mindful of a prevailing sentiment that the fact that an individual absents himself from his established domicile for extended periods of time for employment purposes does not on its own, manifest any intended changes in primary residence ( see Chelsmore Apts. v. Garcia, 189 Misc 2d 542, 733 N.Y.S.2d 329, [Civ. Ct. NY County 2001], aff'd 2003 WL 1567449, 2003 NY Slip Op. 50621(U) (NY Sup. App. Term 2003); Coronet Properties Co. v. Brychova, 122 Misc 2d 212, 469 N.Y.S.2d 911 [Civ. Ct. NY County 1983], aff'd 126 Misc 2d 946, 488 N.Y.S.2d 1020 (NY App. Term, 1st Dept. 1984); Rose v. Mallare, N.Y.L.J., 6/7/93, p. 28, col. 6 (App. Term, 1st Dept.); Gracie Townhouse Assocs. v. King, N.Y.L.J., 5/6/91, p. 24, col.4 (App. Term, 1st Dept.)).
However, the fact that respondent was required to live abroad for his employment was certainly not the basis for the Court's decision. Instead, it was the sum and substance of the evidence presented which failed to sufficiently demonstrate that respondent maintained a substantial physical nexus or connection with the subject apartment for actual living purposes ( see 300 E. 34th Street Co. v. Habeeb, supra; Cox v. J.D. Realty Associates, 217 AD2d 179, 637 N.Y.S.2d 27 [1st Dept. 1995]; see also Coronet Properties Company v. Brychova, supra, at 213, where the Court recognized that a personal element and connection was essential to establish residency. . . . . "[M]oreover, [her] use of this apartment for [her] piano and personal possessions, and most importantly, [her] intent to reuse it when [her] professional life allows, are sufficient to establish [her] legal domicile").
Indeed, respondent never testified or even intimated that he perceived the apartment as being his home or personal space. He did not proffer "readily available" proof that might have corroborated his claim to residency in the relevant period, such as "affidavits of third parties, correspondence addressed to [him] at the apartment and/or commercial receipts" ( see 420 East Associates v. Estate of Lennon, 223 AD2d 408, 409, 636 N.Y.S.2d 56 [1st Dept. 1996]; Cox v. J.D. Realty Assocs., supra).
The test of domicile has been determined to be, "whether the place of habitation is the permanent home of the person, with the range of sentiment, feeling and permanent association with it. . . ." ( Minsky v. Tully, 78 AD2d 955, 955, 433 N.Y.S.2d 276 [3 Dept. 1980 ]). In the case at bar, there was no evidence of any personal possessions left in the apartment, but most importantly, there was no indication that the apartment was the home respondent always intended to return to or utilize as his ongoing home.
During defendant's entire testimony, it was clear that the subject premises was his mother's home and that his visits back there were made solely for the purpose of seeing her over various holidays and vacations, or to see his accountant during tax season. Any nexus was mainly and clearly with his mother, not the apartment. Indeed, domicile has been defined as the location where a person "intends to make his home indefinitely" ( Matter of Brunner's Estate, 41 NY2d 917, 363 N.E.2d 346).
Additionally, while it was not explored in great detail, testimony revealed that the subject premises is a one bedroom apartment which presumably was used by respondent's mother during her lifetime. Without further explanation, it is difficult to envision how respondent lived there during his mother's tenure, especially when she was ill and required a constant home attendant.
The Court further notes that while the various documents submitted in evidence all bear the subject address, they are official, business documents emanating from state and federal agencies which utilize for mailing purposes, any address that is provided to them, without knowledge of what kind of building, premises, etc, the address represents. Respondent failed to proffer any documents and/or correspondence that bear the subject address which are of a personal nature, ie. letters, greeting cards, post cards, etc. These would presumably be sent by people who knew respondent personally.
Additionally, respondent failed to call any witnesses which could have supported his allegation that the subject apartment was truly his home. However, what the Court found truly troubling was that respondent testified that his only consideration in permitting petitioner to take back the apartment would be for his mother's well being. Again, no mention of his affiliation with the apartment for his own personal purposes.
The Court notes that during the trial, attorney for respondent objected to this line of questioning, arguing that it violated C.P.L.R. § 4547. The Court reserved decision and continued with the trial. Now, the Court overrules the objection, finding that this line of questioning is not barred by C.P.L.R. § 4547, as this section refers to settlement negotiations. It is clear that the period of time when respondent's family was discussing the possibility of surrendering the apartment and moving respondent's mother to a facility, occurred before the inception of this suit.
Respondent, when answering questions about his considerations concerning the prospect of surrendering the apartment, did not ever indicate that he wanted and/or needed to remain in the apartment for whatever reason. This lack of such integral testimony, unfortunately, was what led the Court to its decision.
Accordingly, the Court finds that respondent not be accorded successor rights and thereby, cannot remain in the subject premises as the tenant of record. Additionally, it is hereby
ORDERED: 1) judgement of possession granted in favor of SP10 Dowling, LLC
2) warrant to issue forthwith, execution stayed 30 days
This constitutes the decision and order of the Court.