This summary holdover proceeding was commenced by 449 WEST 46 LLC(Petitioner) against ALEC TIMERMAN (Respondent) the rent stabilized tenant of record seeking to recover possession of 449 West 46th Street, Apartment 2, New York NY 10036(Subject Premises) based on the allegation that Respondent has failed to maintain the [*2]Subject Premises as his primary residence.

The Notice further asserts that Respondent listed the Philadelphia address in relation to

The Notice of Petition issued September 12, 2013, and the proceeding was initially returnable September 24, 2013. Respondent appeared pro se and served an answer dated September 24, 2013 in court on the initial return date. The answer asserts: prior action pending; that Respondent has maintained the Subject Premises as his primary residence since 2001; that the Pennsylvania House was his mother's, and he and his sister had inherited upon their mother's death, and that said house was currently occupied by Respondent's sister; that Respondent had spent one year in Pennsylvania following his mother's death to wind up the estate and that during said period the Pennsylvania address was listed on some of his official documents; and failure to state a cause of action.

On November 12, 2013, Petitioner moved for an order allowing Petitioner leave to conduct discovery. The motion was granted on consent pursuant to a written stipulation providing Respondent would produce the documents requested by December 16, 2013, and appear for an EBT on January 9, 2014. The stipulation further provided Respondent would pay use and occupancy pendete lite from December 2013 forward. The stipulation was not so-ordered by the court.

On January 22, 2014, Petitioner moved for relief pursuant to CPLR § 3126. The moving papers asserted Respondent had failed to comply with the stipulation, had provided no responsive documents, had failed to appear for a deposition and had failed to pay use and occupancy. The motion was granted by the court on February 7, 2014, pursuant to an order to the extent of extending Respondent's time to produce responsive documents to March 7, 2014, and directing Respondent to appear for a deposition on March 19th. The order further adjourned the proceeding to March 26, 2014 for all purposes.

Respondent's deposition took place on March 19, 2014

On March 26, 2014, Respondent failed to appear and the proceeding was adjourned to April 24, 2014 for inquest. On April 24, 2014, Respondent appeared by counsel and the proceeding was adjourned per stipulation to June 3, 2014. On May 30, 2014, the parties through counsel entered into a stipulation adjourning the proceeding to June 20, 2014 for trial, and discontinuing a prior sublet proceeding pending proceeding under Index Number 92001/11.

On June 20, 2014, the proceeding was assigned to Part L for trial. The trial commenced and concluded on said date. The proceeding was adjourned to August 1, 2014 for submission of post trial memoranda. On August 1, 2014, post trial memoranda were submitted and the court [*3]reserved decision.

PRIOR RELATED PROCEEDING

There was a prior summary holdover proceeding pending between the parties at the time this proceeding was commenced under Index Number 92001/2011. On notice to the parties the court has requisitioned the file from said proceeding and takes judicial notice of its contents. In said proceeding, Petitioner issued a ten day notice to cure dated October 20, 2011, asserting that Respondent had sublet the Subject Premises to "Ammme Yearwood" and/or other unidentified occupants, and that Respondent had been linked to residing at the Pennsylvania Address.

A notice of termination was issued on November 11, 2011, and the proceeding was initially returnable December 16, 2011. On January 20, 2012, Respondent signed a stipulation agreeing to pay on going use and occupancy as it became due, and acknowledging some payments made and accepted in court. The proceeding was adjourned to February 10, 2012.

Respondent appeared by counsel on February 10, 2012. Respondent filed a written answer dated February 10, 2012, asserting that he continued to occupy the Subject Premises, that he had inherited the Pennsylvania Home and that he had been in Pennsylvania for approximately a year to wind up affairs related to his mother's estate.

On February 10, 2012, the parties stipulated to discovery, and the proceeding was marked off calendar pending discovery.

On June 3, 2014, Petitioner moved for an order restoring the proceeding to the calendar, and consolidating the proceeding with the nonprimary residence proceeding under Index number 79999/13. On said date the parties submitted a stipulation discontinuing the proceeding and the motion was deemed withdrawn.FINDINGS OF FACT

Petitioner is the owner of the Subject Building pursuant to a deed dated August 30, 2006

Kathleen Timerman, Respondent's mother, passed away in July 2010. Respondent moved into 513 Carpenter Lane, Philadelphia PA, 19119 (Pennsylvania Home) with his mother, one month prior to her death to take care of her. Respondent and his sister inherited the Pennsylvania Home from his mother pursuant to a deed dated October 25, 2011 (Ex 6).

Respondent filed 2010 taxes listing the Pennsylvania Home as his address ((Ex 7). In said tax return Respondent asserted that he resided in New York City for the first six months of 2010. Respondent filed an amended tax return for 2010 (Ex E). The amended return lists the Pennsylvania Home as Respondent's mailing address, but has handwritten in that the Subject Premises is Respondent's permanent home address. The amended return is signed by the preparer as of February 26, 2012. The document provides that an amended return was filed to correct a Part year New York State Return to a full year resident return. In the amended return, Respondent asserts he lived in New York City for twelve months, rather then the six months alleged in the original return. Respondent's 2011 and 2012 tax returns list the Subject Premises [*4]as his address (Exs F & G).

Respondent received statements from his TD Bank account at the Pennsylvania Home through January 2012 (Ex 8). Through May 2013 the account shows consistent transactions in and around Philadelphia. The Pennsylvania Home was on the market for sale as of the trial date (Ex D). The home was only placed on the market a few weeks before the trial date in this proceeding.

Documents relating to homeowners insurance for the Pennsylvania Home were mailed to Respondent at the Pennsylvania Home in 2012 (Ex E). Respondent's student loan documents were sent to him at the Pennsylvania Home through December 2012 (Ex 10). The student loan documents had been sent to him at the Subject Premises through mid 2010, when Respondent had the address for the statements changed to the Pennsylvania Home. Respondent's T-Mobile statements were sent to him at the Pennsylvania address in 2012 (Ex 11).

Prior to 2011, Respondent maintained a New York State driver's license. During the period of 2011 through 2013, Respondent maintained a Driver's License with the State of Pennsylvania listing the Pennsylvania Home as his residence. Respondent maintained this license through and including 2014, when he surrendered the license and once again obtained a New York license listing the Subject Premises as his residence.

During the period of 2011 and 2012, the Philadelphia Gas Works account relating to the Pennsylvania Home was in Respondent's name. During the same period, the Water Revenue Bureau account relating to the Pennsylvania Home was in Respondent's name. During the same period, the Direct TV account for the Pennsylvania Home was in Respondent's name, as was the electricity account and the Verizon telephone and internet account.

Respondent owned a car. The certificate of title was issued in February 2011 inPennsylvania and lists the Pennsylvania Home as the address of record (Ex 15). Respondent registered the car in Pennsylvania and insured it with billing statements sent to Respondent at the Pennsylvania Home (Ex 12). Respondent kept the car at the Pennsylvania Home, and only rarely brought the car to New York City. Respondent sold the car in July 2013.

Respondent's Linked In account designates him as being based out of Philadelphia (Ex 13).

Respondent sublet the Subject Premises and from 2011 through 2013 had one or more occupants residing in the Subject Premises in his absence. These individuals paid rent to Respondent. One of the subtenants was Willie. Willie lived in the Subject Premises from February 2012 through February 2013 and paid Respondent $1100 per month in rent during this period. Willie moved out of the Subject Premises when Respondent moved back in. Before Willie Respondent rented the Subject Premises to Gil, who paid the same monthly rental. Respondent found these occupants by advertising on Craig's List. Respondent entered into to no written lease agreement when subletting the Subject Premises to these individuals.

During the period of October 2011 through February 2013, Respondent was employed full time with Nelson Company and physically worked out of the Company's Philadelphia office five days per week, from 8:30 am to 6 pm. Respondent received employment related documents at the Pennsylvania Home from September 2010 through October 2011.

After his mother's death, Respondent obtained treatment for depression at Penn State University.

Respondent belonged to a gym in Philadelphia and he had a dog he kept in the Philadelphia Home through the Fall of 2012. Respondent also testified he rented a room in [*5]Philadelphia from December 2012 through February 2013. Respondent testified he had no lease for said room but that he paid rent. Respondent testified that he rented said room because his sister had moved into the Philadelphia Home, and after they lived together for a month or so, Respondent found it wasn't agreeable for him, to live with his sister.

The court found Respondent's testimony lacked credibility on certain points. For example, Respondent testified that in 2010 he changed his student loan documents so they would be sent to the Pennsylvania Home instead of the Subject Premises. Respondent testified that he made this change because he never looked at the hard copies of documents mailed to him and preferred to handle everything by email. Similarly, Respondent's testimony regarding changes in his tax documents lacked credibility, as did his testimony regarding his employment in Philadelphia. Respondent gave completely contradictory testimony at his deposition and at the trial regarding his full time employment in Philadelphia.

DISCUSSION

§ 2520.6(U) of the Rent Stabilization Code in defining primary residence provides:

Although no single factor shall be solely determinative, evidence which may be considered in determining whether a housing accommodation subject to this code is occupied as a primary residence shall include, without limitation, such factors as listed below:

(1) Specification by an occupant of an address other then 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 then such housing accommodation as a voting address;

(3) Occupancy of the housing accommodation for an aggregate of less then 183 days in the most recent calendar year, except for temporary periods of relocation pursuant to section 2523.5(b)(2).

The Court finds that Petitioner established by a preponderance of the credible evidence at trial that Respondent was living in the Pennsylvania home from June 2010 through early 2013. Although the first month Respondent was there could be considered an excusable period of temporary relocation to care for his mother, Respondent remained for years after his mother's death. Respondent filed his taxes from Pennsylvania and only attempted to change the address on tax records after Petitioner instituted litigation regarding the Subject Premises.

In his post trial submission, Respondent argues for the first time that his relocation to Pennsylvania should be excused as it was due to professional obligations. There was no evidence to support such a claim at trial. The evidence at trial did show that Respondent accepted full time in employment in Philadelphia, and this was not a temporary assignment or a situation where Respondent's work required him to travel.

Respondent argues that now he is back in New York, at least since early 2013, and that he lacks another place to live. However, nonprimary residence is not subject to cure, and the fact that Respondent in 2014 decided to sell the Pennsylvania House and moved back to New [*6]York in 2013 is not a legal defense to the underlying proceeding.

Respondent failed to establish that his physical relocation to Philadelphia from 2010 through 2013was necessary to wind up his mother's estate.

Based on the foregoing, the court awards Petitioner a final judgment of possession as against Respondent. The warrant of eviction shall issue forthwith. Execution of the warrant is stayed through November 30, 2014, to afford Respondent an opportunity to vacate, and conditioned upon ongoing payments of use and occupancy at the last lease rate.

This constitutes the decision and order of the Court.^[FN1]

Dated: New York, New York

August 4, 2014

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Sabrina B. Kraus, JHC