This summary holdover proceeding was commenced by RSP 86 PROPERTY LLC (Petitioner) against the rent stabilized tenant of record MARTIN SYLVESTER (Respondent) seeking possession of 110 West 86th Street, Apt. PHB, New York, New York 10024 (Subject Premises) based on the allegation that Respondent has failed to maintain the Subject Premises as his primary residence.

Petitioner issued a Notice of Non-Renewal dated January 11, 2013, which asserted that Respondent spent over 183 days in the prior year living at in East Hampton, New York and Highland Beach, Florida. The petition is dated May 1, 2013 and the proceeding was originally returnable on May 14, 2013.

On May 14, 2013, Respondent appeared by counsel, and the parties entered into a stipulation in which Respondent generally denied the allegations in the petition, consented to limited disclosure, and the proceeding was marked off calendar.

On November 19, 2013, Respondent served an answer asserting five affirmative defenses and a counterclaim for attorneys' fees. The defenses included allegations that the predicate notice was defective, that Respondent has always maintained the Subject Premises as his primary residence, failure to name a necessary party and related claims.

On January 2, 2014, Petitioner moved to restore the case to the calendar for trial. The motion was granted per order issued January 22, 2014, and trial was set for February 28, 2014. On January 22, 2014, Respondent cross-moved for limited disclosure pertaining to Petitioner's surveillance video. The cross-motion was also granted per order directing Petitioner to provide Respondent with the video footage on or before January 24, 2014.

On March 27, 2014, the proceeding was assigned to Part L for trial. The trial commenced on said date and the proceeding was adjourned to April 30, 2014, for continued trial. On April 30, 2014, the trial was completed and the proceeding was adjourned to May 14, 2014 for post trial submissions. On May 14, 2014, the Court reserved decision.

FINDINGS OF FACT

Petitioner is the owner of the Subject Premises, which is a condominium pursuant to a

Petitioner owns sixteen apartments in the subject building, including the Subject Premises. The Subject Premises is a large one bedroom apartment, totaling approximately nine hundred square feet, on the top floor of the building, with a fireplace. It has a south facing terrace that is approximately four hundred and fifty square feet and fully landscaped. The building has a twenty-four hour doorman.

Respondent is eighty-nine years old and has lived in the Subject Premises for forty years. Respondent moved to the Subject Premises during his separation from his former wife of eighteen years. Respondent got divorced and has two sons from his first marriage, Paul aged fifty-five and Peter, aged sixty-two. Respondent never remarried and has continuously lived in the Subject Premises since he moved in.

Respondent owns a home at 20 Bon Pinck Way, East Hampton, New York 11937 (EH Home), which he purchased on December 14, 1986 (Ex 7). Respondent uses the EH Home on weekends and during the summer. The EH Home is a ranch of fourteen hundred square feet. It has three bedrooms and two baths, and sits on a half acre lot. In addition to Respondent, the EH Home is used by Respondent's children and grandchildren, as well as Respondent's girlfriend, Maris Elman (Elman). Respondent has never rented out the EH Home.

Respondent also has an condominium apartment that he bought with Elman, which is located at 4748 South Ocean Boulevard, Highland Beach, Florida (Fla Apt). Respondent and Elman bought the Fla Apt in approximately 2007. Since 2007, Respondent and Elman go to Florida from mid December and through mid April, annually.

Respondent and Elman have dated for approximately thirty-nine years. Elman has her own residence in Manhattan on the Upper East Side. Respondent and Elman maintain separate residences in Manhattan, in part, because they do not like to sleep in the same room. Elman has never stayed at the Subject Premises, and Respondent has never stayed at Elman's New York City apartment.

Respondent gets all of his mail at the Subject Premises. Respondent has never sublet the Subject Premises. Respondent's son Paul has occasionally used the Subject Premises since 2010. Petitioner's video footage shows Paul was at the Subject Premises approximately sixty-five days in the period August 2011 through August 2013. Respondent's 2011 and 2012 tax returns list the Subject Premises as his home address (Exs C-1 and C-2). Respondent pays New York City resident income taxes.

Respondent's doctors are all located in Manhattan and this is where he receives his regular medical treatments. Respondent has been registered to vote in Manhattan for forty-five years and has never registered to vote anywhere else (Ex B).

Respondent retired in 2000. After 2007, Respondent started spending more time in Florida.

Respondent's documents all show the Subject Premises as his address, including bank statements and credit card statements. Respondent has a New York State Driver's license issued March 2009 which lists the Subject Premises as his address (Ex A). Respondent has two cars. One car he keeps in Florida during the winter months and in East Hampton the rest of the year. The other car stays in East Hampton. The cars are registered in New York (Ex 13).

The court found Respondent and Elman to be very credible witnesses and credits their testimony in its entirety.

Petitioner entered into evidence surveillance videos of the Subject Premises (Ex 12). Respondent asserts that the video evidence, along with other documentary evidence, shows that between May and December 2011, Respondent spent between 96 to 106 days in the Subject Premises and that in the calendar year 2012, he spent 134 days in the Subject Premises. Petitioner asserts that from August 2011 through August 2013, Respondent spent approximately 241 nights sleeping in the Subject Premises, or was physically present at the Subject Premises approximately one third of the time. However, Petitioner acknowledges over 30 days during this period where the video was not working and Respondent could have been sleeping in the Subject Premises.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 RSC in defining primary residence provides:

Although no single factor shall be solely determinative, evidence which may be considered in determining whether a housing accommodation ... is occupied as a primary residence shall include ...

(1) Specification by an occupant of an address other than such housing accommodation as a place of residence on any tax return, motor vehicle registration, driver's license or other document filed with a public agency;

(2) Use by an occupant of an address other than such housing accommodation as a voting address;

(3) Occupancy of the housing accommodation for an aggregate of less than 183 days in the most recent calendar year; except for temporary periods of relocation pursuant to section 2523.5(b) of this title;

(4) Subletting of the housing accommodation.

Petitioner offered no evidence at trial that Respondent listed any other address on any document as his residence, that Respondent ever sublet the Subject Premises, or that Respondent has ever used another address for voting purposes.

The only evidence Petitioner offered at trial that relates to the specific criteria listed in the statute addresses the number of nights Respondent slept in the Subject Premises in the calendar years 2011 and 2012. However, it is well settled that proof that a rent-stabilized tenant spends less then a majority of his time at a rent stabilized apartment is not dispositive as to a determination of primary residency (Claridge Gardens, Inc v Menotti 160 AD2d 544; Coronet Properties Co v Brychova 122 Misc 2d 212 affd 126 Misc 2d 946). As specified in the RSC "... no single factor shall be solely determinative...".

It is reasonably that after several decades in the Subject Premises, that Respondent's use of the Subject Premises has decreased since 2007, particularly given that Respondent is now eighty-nine years old and retired. Despite the fact that he uses his home on Long Island on weekends and in the summer, and that he spends a few months a year in Florida, it is clear to this Court that he has and continues to maintain the Subject Premises as his primary residence.

The court finds that Petitioner failed to meet its burden at trial of establishing by a preponderance of credible evidence that Respondent has not maintained the Subject Premises as his primary residence.

It is well settled that having a weekend home used by a tenant on weekends and during the summer months does not compel a finding of nonprimary residence (LF Gue Investments v Ruskin 15 MNisc3d 127(A)). Similarly, the fact that Respondent is a snow bird and has spent four months a year in Florida since approximately 2007 does not warrant a finding of nonprimary residence. " This case presents a not uncommon snowbird' situation' where an elderly tenant purchases a Florida property for use during the winter and/or for vacations [Glenbriar Co. v Lipsman 11 AD3d 352, at 354 citing Appellate Term decision at 2002 NY Slip Op 50225(U); Rego Estates v Lilllian NYLJ June 23, 1998, p.33, col 3 (App Term 2nd & 11th); Rakoff v Hebert NYLJ June 5, 1998, p 29, col 3 (App Term, 1st Dept); Center for Modern Psychoanalytic Studies v Doe NYLJ Nov 6, 1998 p 21, col 1 (App Term, 1st Dept)].

Based on the foregoing, the Court finds that Respondent has continued to maintain " ... the requisite ongoing physical nexus with the subject premises for living purposes (Rego Estates supra) and that Respondent has maintained the Subject Premises as his primary residence, notwithstanding his seasonal use of homes in Long Island and Florida.

As such the petition is dismissed.This constitutes the decision and order of this Court.

SABRINA B. KRAUS