In this summary holdover proceeding, petitioner-landlord, Mahmoud Mozaffari ("petitioner"), seeks to recover possession of the fourth floor residential loft (the "apartment" or "premises"), a rent stabilized dwelling unit located at 111 Chambers Street, New York, New York (the "building") on grounds that the apartment is needed for the personal use and occupancy of petitioner's mother, Gorji Rahimi ("Ms. Rahimi"), as her primary residence. The apartment is currently occupied by respondent-tenant, Craig Fisher ("respondent"), pursuant to a rent stabilized lease, and where respondent has resided for the past 31 years.

Petitioner claims that he is entitled to recover possession of the premises pursuant to Rent Stabilization Code ("RSC") [9 NYCRR] § 2524.4, which provides that a residential landlord is not required to offer a renewal lease where the owner seeks to obtain the premises for his own personal use or for the personal use of a family member (RSC § 2524.4 [a]).

This court conducted a trial over a period of several months during which petitioner, Ms. Rahimi, and respondent all testified. Architects John Furth Peachy and Martin Marcus also testified as expert witnesses for respondent and petitioner, respectively. This court generally credits the testimony of respondent's and not petitioner's witnesses and makes the following findings of fact and conclusions of law.

On or about October 26, 2004, petitioner served respondent with a notice of non-renewal of his rent stabilized lease for the subject premises (the "Golub Notice"), informing him that petitioner did not intend to renew respondent's lease based on petitioner's intention to use the apartment for the personal use and occupancy of petitioner's mother, Gorji Rahimi, and his father, Gholamhossein Mozaffari, as their primary residence. The Golub Notice further stated, in [*2]part:

"Said family members currently reside in Queens, New York. The reasons why said family members need to relocate to the Premises are as follows:

Gorji Rahimi, seventy-five (75) years of age, is in declining

health, and is increasingly unable to care for herself and her spouse;

b.Gholamhossein Mozaffari, eighty-three (83) years of age, is in declining health, and is increasingly unable to care for himself and his spouse;

c.Owner resides on the third floor of the Building, and requires his parents to reside in the Building to assist them with their growing needs; and

d.Owner's mother, Gorji Rahimi, and his father, Gholamhossein Mozaffari, will surrender possession of their residence in Queens, New York and maintain the Premises as their primary residence" (see Court Exhibit 1).^[FN1]

It is not disputed that in December 2006, petitioner's father passed away in Iran.

Petitioner is the owner of the building, a five story walk-up with no elevator. Petitioner lives on the third floor of the building with his wife and children, as a primary residence, and owns a photo shop on the first floor. His children attend school in the neighborhood.

The fourth floor, rent stabilized apartment contains one bedroom and a loft. Petitioner testified that he wants the apartment as a primary residence for his mother, who currently resides in a one-bedroom apartment located on the first floor of an elevator building on Franklin Avenue in Flushing, Queens (the "Flushing apartment"), leased for her by petitioner's brother-in-law, Bijan Sadjan, who is married to petitioner's sister, Azam.^[FN2] Petitioner believes that this apartment may be rent stabilized.^[FN3] Ms. Rahimi often visits petitioner's family on Chambers Street and stays with them in their third floor apartment. She also "moves around a lot" and stays with another brother, Ghohamali ("Ali"), in Long Island, or with his sister Azam and her husband Bijan at their house at 17 Summer Avenue in Great Neck, Long Island.^[FN4] Bijan and Azam live in Long [*3]Island, although Azam sometimes stays with her mother at the Flushing apartment. Petitioner's brother Ali has lived with his mother in the Flushing apartment for about the past two or three years, and also owns a house in Huntington, Long Island. Petitioner testified that he and all his siblings contribute to his mother's rent and living expenses, which are paid by his brother-in-law Bijan.

Petitioner testified that his mother is "past seventy" and "seventy seven," acknowledged being unsure of his mother's actual age, and was "guessing" when he stated in the Golub Notice that she was 75.^[FN5] Ms. Rahimi's birth certificate lists her date of birth as September 24, 1928, i.e., she was 79 years old at the time of trial. Likewise he was unsure of his father's age and was "guessing" when he stated in the Golub Notice that his father was 83.

Petitioner testified that his father died of a heart attack at the age of 84 in Iran on December 3, 2006. His parents lived in the Flushing apartment since coming to the United States more than 20 years ago, although his father would go back and forth to Iran every two years, staying for a month or two each time. His father owned two houses, a garage business, and farm land in Iran. Approximately six years ago, his father went to Iran and could not return because "his green card was stolen in Iran." Petitioner testified as to the efforts of family members, and pleas to elected officials, to secure his father's departure from Iran, including two trips that his father and another brother had made to Turkey to attempt to obtain a visa allowing for his father's return to the United States. Petitioner acknowledged that, at the time of the Golub Notice on October 26, 2004, his father had been living in Iran for several years.

Petitioner testified that his mother is in good health for her age, "normal and healthy", can take care of herself, and has no difficulty walking up the stairs to the third or fourth floors of the building, and occasionally up to the roof. Petitioner asserted that the fifth floor tenant, an elderly woman of about 80, is able to walk up the stairs to her apartment without difficulty. He wants the apartment for his mother because "she's an older lady and I want her to be near me, especially when she [doesn't] have any [of her] own places."

Likewise, petitioner testified that his father had not been sick prior to his heart attack, had been in good health for his age, and took care of himself. Petitioner last saw his father in the summer of 2004 when he visited him in Iran, and spoke to his father either weekly or monthly by telephone until his death.

Petitioner's mother is the owner of a building at 1065 Clay Street in the Bronx (the "Bronx property"), which she purchased at a NYC auction on or about August 2, 1989, pursuant to a program which allows a discounted purchase price in exchange for, and subject to, the condition that the owner will repair and renovate the building, move in, and occupy the premises as a primary residence for at least three years. Ms. Rahimi also obtained a mortgage on this property. Petitioner suggested incredibly that his mother was "forced" by the city to purchase the building because she had attended the auction with his brother, Hossein, and "somehow her hand went up." Petitioner asserted that the repairs and renovations were commenced but never finished [*4]because they ran out of money, and the building was abandoned. His mother never moved in, although the family continues to assist her in paying off the mortgage. Petitioner claimed he was not aware of the details of this purchase until just recently. Currently, it is a "shell building, a burned building" unsuitable as a residence.

Petitioner testified that 111 Chambers Street has "less than 45" steps from the ground floor to the third floor and about 65 steps from the ground floor to the fourth floor. Should his mother become unable to walk up the stairs, petitioner stated that he will install an elevator or a chair lift in the building and will change the hallway to accommodate the elevator. Petitioner testified that he made some inquiries and believes that he can install an elevator in the existing hallway of the premises.

Ms. Rahimi testified that she is 77 years old, does not to know the year of her birth, does not read or write in any languages and does not know English. Her testimony was generally vague and often non-responsive and she was often asked questions multiple times before giving a somewhat direct answer. In spite of her evasive answers, the following information was gleaned from her testimony. Her permanent residence is at the Flushing apartment which belongs to her son-in-law Bijan, although she does not want to be with them any longer and wants to be with petitioner. She is "always" at petitioner's premises, takes her grandchildren to school and the park and back, "always" walks up the stairs to their apartment and has walked up to the roof a few times to take food to workers on the roof. She testified that she came to court from Flushing by herself, taking the subway and walking from the subway station to the courthouse.

The Flushing apartment is a one bedroom with a small kitchen and living room. Her son Ali comes over four or five nights a week, otherwise Ms. Rahimi stays at his house in or near Huntington. Her daughter also comes over. Her son, Mehdi, stayed with her for four or five years and moved out two years ago. She also testified to traveling by subway to visit her son Jahangir in Harlem.

Her husband traveled to Iran six years ago because "he had a house there and he had a life there. He had everything there." She visited her husband in Iran about once a year from the time he went to Iran in 1999 and he could not return due to his "green card situation." In 2004, her husband's health was "excellent. He took care of himself and he didn't need anybody."

Her own health is "fine. I don't need [to be] taken care of even now," but allowed that petitioner and his wife and children could take care of her "later on." In October 2004, her only health condition was a pain in her leg, which lasted but a few days, as a result of hitting a table. She was taking care of herself and was not taking care of her husband because he was in Iran.

Ms. Rahimi testified that the Bronx property was purchased at a government auction and that her son Hossain, who has since moved back to Iran, bought it under her name. She testified that she did not know the address of the property and was there only once, about 17 or 18 years [*5]ago,^[FN6] and that the property is "a ruin." Later, Ms. Rahimi testified that the property was purchased for her by her son, Ali, to whom she had given power of attorney (see respondent's exhibits A, C) and that $20,000 was spent on the property but it was never fixed.

On cross-examination, Ms. Rahimi acknowledged she was aware that, as a result of her appointing Ali as her power of attorney, a deed and a mortgage were executed on her behalf with the City of New York for the purchase of the Bronx property. She was further aware that she was supposed to move into the property as a primary residence for at least three years, and that she was to rehabilitate the building within three years of the closing and to obtain a new certificate of occupancy.

On behalf of respondent, John Furth Peachy, a licensed architect, testified as an expert witness that, in his opinion, after visiting and examining the building, it is not possible to install an elevator in the building without major structural renovations. An elevator cannot be installed in the existing hallway, and there is not enough room to install a chair lift in the stairway. Although he testified, on cross-examination, that it is hypothetically possible to install an elevator in an existing shaft inside a building, assuming that one existed, the presence of such a shaft in 111 Chambers Street was never demonstrated. A chair lift, he said, could be installed that would fold up when not in use, although he testified that such a chair lift would not comply with the building code.

Respondent testified that he has lived in the apartment as his primary residence for 31 years; his two children currently reside with him. He asserted that there are seventy "shockingly steep" steps from the ground floor to the fourth floor.

Respondent alleged several instances in which needed repairs to his apartment were never made and petitioner ignored his complaints. He also testified to an incident in April 2004 during which petitioner had come to his apartment in response to complaints about a bathroom leak, in which petitioner allegedly threatened to "get rid of" respondent and the other tenants in the building, "then I will have no problems."

In rebuttal, petitioner's expert witness, Martin Marcus, an architect licensed in New York, New Jersey, and Connecticut, and an expert in the legalization of loft buildings in NYC, testified that a stair lift or chair lift could be installed in the building for a handicapped person to ascent a flight of stairs, and that the premises could be renovated to accommodate a private elevator, by moving the existing stairs back and placing a new elevator and shaft in the existing stairwell. Alternatively, a private elevator could be installed for the use of respondent and his mother on the outside rear of the building in the northeast corner. In order to do so, the second, third and fourth floor rear windows would have to be blocked.

On cross-examination, Mr. Marcus testified that he had never installed an elevator in a building with rent regulated tenants which did not have an existing elevator prior to installation, [*6]and that he had not examined the back wall of the building. When his initial opinion as to where an elevator could be placed was demonstrated, on cross-examination, to be impossible, Mr. Marcus suggested two alternative locations in the rear of the building, one of which was inconsistent with the building plans, and the other which was shown to obstruct the rear windows of the building. In sum, his opinion that an elevator could be installed in the building was discredited upon cross-examination.

Pursuant to RSC § 2524.4 (a), an owner may refuse to offer a renewal lease to a rent stabilized tenant when the owner seeks to recover possession for the owner's use and occupancy as a primary residence or for the use and occupancy of a member of the owner's immediate family (RSC § 2524.4 [a] [1]).^[FN7] This refusal must be made in good faith, requiring a showing that there is an actual intent to use the unit as a primary residence for the owner or an immediate family member (see Nestor v Britt, 213 AD2d 255 [1st Dept 1995]). The good faith requirement of RSC § 2524.4 (a) is met when an owner "seeks to gain possession with the honest or genuine intention to recover the tenant's premises for personal and/or family use" (Delavan v Spirounias, NYLJ, March 14, 2001, at 19, col 5 [Civ Ct, NY County], citing Delorenzo v Famiglietti, NYLJ, May 1, 1996, at 30, col 3 [App Term, 1st Dept]). The court must scrutinize the totality of the facts and circumstances when determining whether an owner is acting in good faith (see Tauber v Ruscica, NYLJ, Oct. 14, 1987, at 14, col 3 [Civ Ct, NY County]). The owner carries a prima facie burden to establish by a preponderance of the evidence a good faith desire to recover the apartment for the owner's use (see Minick v Park, NYLJ, Feb. 25, 1999, at 29, col 2 [App Term, 1st Dept]).

Petitioner has not met his burden of proving, by a preponderance of the evidence, the good faith need for the apartment as his mother's primary residence. The testimony of petitioner and his mother failed to support, and indeed, contradicted, the need for the apartment as stated in the 2004 Golub Notice. In particular, there is no evidence, apart from her age alone, that Ms. Rahimi is or was in declining health and increasingly incapable of caring for herself and her [*7]spouse. In fact, testimony established the opposite to be true. Both petitioner and his mother testified that she is in good health, capable of caring for herself and able to climb up four flights of stairs. Likewise, in 2004, the claim regarding Ms. Rahimi's need to care for her spouse was untrue since her husband had been living in Iran for about four or five years at that time.

The court is not persuaded by petitioner's testimony about his intent to install an elevator or chair lift in the premises, nor is the court persuaded that there is a good faith intent on the part of petitioner to move his elderly mother from her first floor apartment in Flushing to a fourth floor walk-up on Chambers Street. Petitioner's testimony regarding the circumstances of his father's extended stay in Iran, and the allegation in the Golub Notice regarding the need for the apartment as the primary residence of his father when his father had been living in Iran since 1999, also lacked credibility.

Likewise, the court has been presented with three different stories as to how Ms. Rahimi acquired the Bronx property. Petitioner claims his mother purchased the Bronx property by mistake. Ms. Rahimi claimed that her son, Hossein, bought it for her, and later in her testimony, that her son, Ali, bought it for her. One thing is certain: Ms. Rahimi made a commitment to the City of New York to reside in the Bronx property as her primary residence for three years, and never moved in. Having failed to fulfill this promise, the court cannot credit Ms. Rahimi's testimony that she has a good faith intention to move into the apartment as her primary residence.

Upon evaluating the testimony and observing the demeanor of the witnesses at trial, the court finds petitioner's and his mother's testimony lacking in candor and credibility, and hence, not believable on the salient points alleged in the notice of non-renewal and petition.It has been observed that each special proceeding for the recovery of an apartment for the owner's use depends on its own particular circumstances (Garner v Berger, NYLJ, July 15, 2002, at 20, col 3, 2002 NY Slip Op 50349 [U], *1 [Civ Ct, NY County, Millin, J.], citing Obloj v Shaw, NYLJ, May 13, 1998, at 31, col 2 [Civ Ct, Kings County, Wendt, J.]). "While courts look to a number of factors in evaluating a landlord's good faith, ultimately a landlord cannot prevail without establishing his own credibility" (Garner v Berger, 2002 NY Slip Op 50349 [U], *1). Neither petitioner nor Ms. Rahimi has offered credible testimony.

Considering the evidence and the credibility of the testimony, the court finds that petitioner has not met his burden of proving, by a preponderance of the evidence, that he has a good faith intent to use the apartment as his mother's primary residence.

Accordingly, the petition is dismissed.

The clerk is directed to mail a copy of this decision to all parties.

This constitutes the decision and order of this court. [*8]

Dated:September 5, 2008

New York, New York

_____________________________

David B. Cohen, J.H.C.

TO:

The Finkelstein Firm, LLP

Attorneys for Petitioner

11 Park Place, Suite 1512

New York, NY 10007

By:Robert Finkelstein, Esq.

David Rozenholc & Associates

Attorneys for Respondent

400 Madison Avenue, 19th Floor

New York, NY 10017

By:David Rozenholc, Esq.

David Pritchard, Esq.