Petitioner commenced this holdover summary proceeding alleging that the respondent, Mirella Toro, abandoned her primary residence in New York in favor of the New Jersey house she purchased in March 2005. Respondent alleges that she purchased the New Jersey house as a vacation and investment property.

In 2006 the petitioner commenced a licensee holdover against the respondent after the passing of her father. That licensee proceeding was discontinued after the respondent proved that she was, in fact, named on the lease. In that proceeding respondent was put on notice that petitioner was aware of her alternate addresses: Petitioner's Ten Day Notice to Quit served upon the respondent in March 7, 2006 stated: "(..) The owner, however, believes that given the fact that you moved out of the subject premises and began residing elsewhere, that you abandoned your interest in the premises by operation of law (...). The landlord believes that you maintain your residence at either: 8 Harmony Way, Sewaren, New Jersey 07077 or at 163 Reynolds Street, Staten Island, New York 10305, or some other location which is unknown to the owner."

The instant non primary residence proceeding was commenced by the service on respondent of a notice of non-renewal on or about October 22, 2007. The notice stated that respondent's lease [*2]would not be renewed because she now resided at 8 Harmony Way, Sewaren, New Jersey 07077.

A trial was held over the course over several days. The respondent denies the fact the she ever vacated the subject premises.

It is undisputed that Mirella Toro has been residing at the subject rent stabilized apartment located at 77 Division Avenue, Apt. 4, Brooklyn, New York since 1977. First, she occupied apartment 4. In 1987 she moved to apartment 3 only to move back to apartment 4 in 1994. She was named as a tenant in the lease for apartment 4 in 1994.

Petitioner alleges that since the respondent purchased a house in New Jersey, she moved out of the subject premises in Brooklyn, New York which is no longer her primary residence. To support its position the petitioner introduced various documents including a Notice to Admit dated April 8, 2008 (Petitioner's Exhibit 1), a Response to Notice to Admit dated April 18, 2008, subpoenaed records from KeySpan for the apartment located at 77 Division Avenue, Apt. 4 for the period January 1, 2005 to March 31, 2008 listing Mirella Toro as an account holder since February 2, 2006, and finally, Mirella Toro's EZPass records for Bridge and Tunnel usage. The records indicate that Ms. Toro's EZPass account was opened on May 24, 2005 using the New Jersey address at 8 Harmony Way, Sewaren, New Jersey 07077 with her cell phone numbers listed as a day contact and her New Jersey phone number as a night contact. She admitted that the statements were sent to the New Jersey address. The records reflect that the respondent changed her contact address to the Brooklyn address in 2008. Petitioner also offered the testimony of Mr. Minitsky as a licensed video surveillance expert, who testified that he installed a camera pointing at the respondent's apartment 4 and two (2) other apartments. Mr. Kline, the property manager testified that he copied all of the surveillance files for the years 2006 to 2008 from the video camera installed in the building to his office hard drive and then copied them onto the discs which were introduced as an evidence as Petitioner's Exhibit 8 a-c. Mr. Kline also testified that he reviewed a voluminous amount of video files and created a log of the recordings which was introduced into evidence as Petitioner's Exhibit 9.

The respondent testified that she did in fact purchase a house located at 8 Harmony Way, Sewaren, New Jersey 07077 in March 2005. The house was purchased as an investment. She was planning to re-sell it, but in the interim it was used for large family gatherings on holidays, weekends, and other special days. Respondent's sister, Lizette moved into the Sewaren house in July 2006. It is unknown when Lizette moved out. After being on the market for over a year, the Sewaren house was sold in June 2008, supporting respondent's contention that the house was purchased as an investment. Respondent further testified that between 2006 and 2007 she was employed at Pfizer, Inc. at its office in Brooklyn and worked the late shift from about 4:00 pm to midnight. She testified that she lived in the Brooklyn apartment about five (5) days a week during the year 2006, spending most of her weekends at her boyfriend's apartment. In 2007, she spent seven (7) days a week at 77 Division Avenue in Brooklyn. The respondent introduced numerous documents into evidence in support of her claim, among them, credit card statements, bank statements, utility bills and tax returns.

The respondent also introduced the testimony of her brother, Neil Toro, who allegedly and contrary to the petitioner's claims, (see: 77 Division Avenue v. Neil Toro, Index No: 58085/08) occupies apartment No. 3 at 77 Division Avenue, Brooklyn, New York. Mr. Toro basically reiterated Ms. Toro's testimony. He testified that nobody lived in Ms. Toro's New Jersey house [*3]before their sister, Lizette moved in. He visited the house during holidays, weekends, and for barbeques. He further testified that he used Ms. Toro's car several times, together with her EZPass. Also, their sister used the respondent's car on several occasions, notwithstanding the fact that Lizette had her own car.

The petitioner claimed a negative inference should be drawn due to the respondent's failure to call two witnesses who have first hand knowledge, namely: her sister Lizette, who lived in the New Jersey house for a time, and her brother Jose Toro, who lives with the respondent in apartment 4 at 77 Division Avenue. The respondent explained the nonappearance of her sister Lizette, stating that she was recovering from cancer treatment and that her brother Jose's testimony would be cumulative.

The petitioner primarily relies on the video surveillance and EZPass records. Although the video surveillance records show the respondent very sporadically entering or exiting her apartment, this Court does not consider it credible evidence. The petitioner introduced three (3) DVDs of video recordings allegedly spanning entire period from January 2006 to December 2008, except for days when the camera was not recording, presumably due to malfunctions. The camera installed in front of the respondent's apartment is motion activated. Every time the recording stops, the equipment creates an independent file. According to the petitioner all those files are copied, maintained and managed by the property manager Mr. Kline. In addition to multiple inaccuracies pointed out by the respondent, the Court agrees that it is impossible to determine whether the recordings are complete and accurate. It is possible that hundreds of files out of thousands might be missing. The ease with which the integrity the files could be compromised by simply deleting some of them renders this evidence minimally credible.

The petitioner also introduced voluminous EZPass records. The respondent testified that she was in possession of two (2) EZPass tags. She further testified that her sister used her EZPass on occasion. Ms. Toro's brother testified that he used it sporadically. The petitioner's analysis of the records suggests that the use of one of the tags was consistent with the respondent's late working hours and the route taken from the New Jersey house to Brooklyn.

In its post-trial brief petitioner reiterated its position that the EZPass usage supports its claim that respondent's primary residence was the New Jersey house. While careful scrutiny of the EZPass records does show activity between New Jersey and Brooklyn, there is no way to determine who used the EZPass on a given date and time or for what purpose. Certainly the EZPass was used during respondent's ownership of the New Jersey property, but is that use sufficient to convince the court that respondent relinquished her Brooklyn apartment as her primary residence? Having considered all the EZPass evidence submitted and having given it the most favorable evidentiary value, the court answers that question in the negative.

During discovery, the respondent made several admissions. Ms. Toro admitted that she purchased two vehicles, one in 2003 and one in 2005 and that she listed the New Jersey address on the registrations. Both cars were insured with Allstate also using the Sewaren address. She explained that she registered the cars in New Jersey to secure lower insurance rates. The respondent purchased the Sewaren house in March 2005 and applied for a mortgage with Country Wide, which sent her statements to New Jersey. Electric, gas, and telephone service were in her name and she was receiving all the bills in New Jersey. Ms. Toro surrendered her New York driver's license and obtained one issued by the State of New Jersey in April 2005 with the address at 8 Harmony Way, Sewaren, New Jersey 07077. Respondent admitted that she applied for a Macy's credit card which [*4]listed the New Jersey address and that her Macy's statements were mailed to the Sewaren address. The same holds true for her Sprint cell phone service. She testified that she needed to show a New Jersey address on those documents in order to obtain a New Jersey driver's license.

Rebutting the petitioner's case, the respondent presented multiple documents to convince the Court that her primary address is 77 Division Avenue, Apt. #

4, Brooklyn, New York. The Court will consider documents predating the first Notice of Termination, namely those dated before March of 2006 when the respondent was put on notice of the petitioner's claims. 1234 Broadway, LLC v. Jing Wu Chen, 20 Misc 3d 1106(A) (2008).

The respondent provided her 2005, 2006, 2007 Homestead Rebate Application for the house at 8 Harmony Way, Sewaren, New Jersey 07077. The inside of the application specifically states: "Do not file this application unless you owned and occupied this property as your principal residence on" October 1, 2007, October 1, 2006, October 1, 2005 - respectively. They were filed by the respondent. The respondent provided Chase bank statements listing her Brooklyn address for period of May 2005 to November 2005 and from January 2007 to July 2008. Entered into evidence were also Lowe's Credit Card statements and other Chase account statements, listing her Brooklyn address and showing multiple New Jersey charges. Respondent's Social Security statements were mailed to her 77 Division Street apartment and she filed Tax Returns (including New York State resident taxes) listing the Brooklyn address since 2003.

The respondent produced various documents which predated the second Notice of Termination dated October 22, 2007: WaMu bank statements, utility bills for the Brooklyn apartment, Ledge Light Federal Credit Union statements (where the only charges were ATM withdrawals in New Jersey), WaMu checking statements (with New Jersey charges), other Chase account statements (with numerous New Jersey charges), BMW payment statements, and statements of her payments to HONDA. Respondent's Discover Card records indicate that in January of 2007 the statements listed the Brooklyn address only to be changed to the New Jersey address in March, and changed back to the Brooklyn address in June 2007.

In a non-primary residence holdover proceeding, the petitioner must establish by a preponderance of the evidence that the tenant's occupancy of the subject apartment "did not constitute the type of ongoing, substantial, physical nexus with the premises for actual living purposes' (citations omitted) that would justify affording the tenancy continued protection under the rent stabilization laws". Emel Realty Corp. v. Carey, 188 Misc 2d 280, 729 NYS2d 228, citing Berwick Land Corp. v. Mucelli, 249 AD2d 18, 617 NYS2d 44. "The petitioner has to prove that the tenant does not reside in the subject apartment" TOA Const. Co. v. Tsitsires, 2003 WL 1793052, 2003 NY Slip Op. 50651. Numerous factors may be considered to determine whether the subject apartment is the tenant's primary residence including 1) tenant's use or non use of the address other than apartment's address on a tax return, motor vehicle registration, driver's license, or other publicly filed documents, 2) the tenant's use or non use of an address other than apartment's address as a voting address, 3) whether tenant lived in apartment for fewer than 183 days in a calendar year, and 4) whether the tenant subleased apartment. None of those single factors, however, are dispositive. ACP 150 West End Ave. Assocs., LP v. Greene, 15 Misc 3d 1112(A), 839 NYS2d 431 (2007). The courts consider numerous factors in adjudicating non-primary residence cases, e.g. evidence that the tenant was seen moving out furniture, Conthur Dev. Co. v. Bartfield, 15 HCR 261(A), NYLJ [*5]8/20/87, 11:1; possession of another dwelling, Schwartz v. Certified Management Corp. 148 AD2d 387; 539 NYS2d 332 (1989); intent to return to apartment at some time, Kips River Assocs. v. Phelan, 30 HCR 311A, 2/28/97, Index #

113945/94, testimony of the landlord's employees, ST Owner LP v. Bonczek, 19 Misc 3d 1139(A) (2007) etc. It is clear though, that no single factor is determinative in a primary residence inquiry. Toa Construction Co., Inc. v. Tsitsires, 9 Misc 3d 469, 798 NYS2d 674 (2006).

In the case at bar, both parties introduced into evidence various records and testimony supporting their position. The petitioner alleges that when the respondent purchased the house in New Jersey, she moved out of her rent stabilized apartment and therefore lost her right to receive continued protection under the Rent Stabilization Law. The respondent, however, claims that she has been living in the subject apartment for over twenty (20) years and that she has never moved out of the apartment. She testified that the house in New Jersey was purchased in March 2005 as an investment and for family use and was sold in June of 2008. Charges on her credit cards occurred in New Jersey because prices there are more reasonable. Her two (2) cars were registered and insured in New Jersey to obtain lower rates. EZPass tags were used by several family members. Utility bills and credit cards were necessary for the respondent to obtain a New Jersey driver's license. In support of her testimony, the respondent submitted numerous documents showing her usage of her Brooklyn address. In addition to New Jersey charges on the respondent's credit cards, there were also New York charges and Brooklyn ATM withdrawals. Most people living in New York are aware that shopping in New Jersey is more economical. Also, as much as this Court does not condone insurance fraud, respondent did logically explain the registration and insurance of her vehicles in New Jersey.

It is undisputed that the respondent spent a significant amount of time in the New Jersey house. She has quite a large family (nine siblings), and having a place where they all can spend time together, close to the New Jersey shore and near lots of shopping malls is understandable.

According to his testimony, the property manager reviewed all the video evidence and not once did he notice the respondent moving out her furniture or other belongings from her Brooklyn apartment. The respondent never forwarded her mail to New Jersey, she has always paid New York resident taxes. The record is devoid of evidence that she ever permanently abandoned her rent stabilized apartment with no intent to return.

The sum total of the records introduced into evidence in this case show the history of the respondent's well-timed address changes, do not conclusively show that the respondent's intent was to surrender her New York residence in favor of New Jersey. Many New York residents own property in another location, which is clearly not indicative of any intent to surrender or relinquish their rent-stabilized primary residence. The Court draws no negative inference from the respondent's failure to call other family witnesses.

Once the petitioner submits its primary case, the burden of proof shifts to the tenant but the ultimate burden of persuasion remains on the landlord seeking eviction on the ground of non-primary residence. Goldman, supra . After consideration of all of the testimony and documentary evidence elicited at trial, the Court finds that under the circumstances of this case, the respondent has continuously maintained a sufficient nexus with the subject apartment for actual living purposes which entitles her to continued protection under the Rent Stabilization Laws. The [*6]choices which Ms. Toro made during the period of time at issue may be questionable, but the facts of this case reasonably lead this Court to the conclusion that the respondent maintains a reasonable connection with her Brooklyn apartment, and continues to maintain the Brooklyn apartment as her primary residence.

Based on the foregoing, the court grants respondent a final judgment dismissing the instant holdover proceeding with prejudice.

This constitutes the decision and order of the Court.

Dated: August 18, 2009

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Anthony J. Fiorella, Jr., JHC