[*1]
Second 82nd Corp v Veiders
2014 NY Slip Op 51493(U)
Decided on October 14, 2014
Civil Court Of The City Of New York, New York County
Kraus, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on October 14, 2014
Civil Court of the City of New York, New York County


Second 82nd Corp, Petitioner-Landlord

against

Raymond Robin Veiders 240 East 82nd Street, Apt. 18C New York, New York, 10028, Respondent-Tenant "JOHN DOE" "JANE DOE" Respondents-Undertenants.




L & T 53945/2010



JEFFREY M. GOLDMAN, ESQ.



Attorney for Petitioner



1185 Sixth Avenue, 10th Floor



New York NY 10036



212.265.2171



FISHMAN & MALLON, LLP



By: SUSAN CRUMILLER, ESQ.



Attorney for Respondent



305 Broadway, Suite 900



New York, NY 10007



212.897.5840


Sabrina B. Kraus, J.

BACKGROUNDThis summary holdover proceeding was commenced by SECOND 82ND CORP(Petitioner) and seeks to recover possession of 240 East 82nd Street, Apt. 18C, New York, New York, 10028 (Subject Premises), based on the allegations that RAYMOND ROBIN VEIDERS (Respondent) the rent stabilized tenant of record was not maintaining the Subject Premises as his [*2]primary residence.



PROCEDURAL HISTORY



Petitioner issued a Notice of Nonrenewal dated July 22, 2009, advising Respondent that his lease which was to expire November 16, 2009 would not be renewed, because he was not occupying the Subject Premises as his primary residence. The Notice further asserted that the staff of the building only observed Respondent occupying the Subject Premises once a month for less than a week at a time.The Notice asserted the Respondent resided elsewheer including 5177 Shimerville Road, Clarence, NY 14031, and that Respondent occupied the Subject Premises far less than 183 days per year.



The petition is dated November 24, 2009, and the proceeding was initially returnable on February 8, 2010. Respondent appeared by counsel and filed an answer dated February 23, 2010, asserting affirmative defenses, and a counterclaim. The third affirmative defense asserted that the Shimerville Road address was the home of Respondent's mother, and initially Respondent spent time there to care for his mother while his mother was sick. The defenses further asserted that Respondent's mother had died on September 25, 2007, and that since her death Respondent has been away from the Subject Premises for certain periods to administer his mother's estate and tend to family business.



Respondent also filed a jury demand, and a demand for a bill of particulars. On May 17, 2010, Petitioner moved for an order: striking the jury demand; granting Petitioner the right to seek discovery; directing Respondents to pay use and occupancy; dismissing the first and second affirmative defenses affirmative. Respondent sought dismissal of the proceeding pursuant to CPLR § 3212(b) .



On August 12, 2010, the court (Halperin, J) issued an order dismissing the proceeding.



On December 1, 2010, the court (Schneider, J) issued orders finding that Respondent was the prevailing party in the litigation and entitled to attorneys' fees and staying the proceeding pending Petitioner's appeal of the August 12, 2010 dismissal.



On March 20, 2012, the Appellate Term reversed the order dismissing the proceeding, and issued an order reinstating the petition. The order further dismissed the affirmative defenses regarding lack of jurisdiction and res judicata, and allowed Petitioner to renew its application for discovery and use and occupancy.



On December 11, 2012, Petitioner moved to restore the proceeding to the calendar and seeking leave to conduct discovery. The motion was granted by the court (Saxe, J) to the extent of granting Petitioner limited discovery. Respondent appeared for a deposition on June 19, 2013.



On September 30, 2013, Petitioner's motion for additional discovery was granted by the court.



On June 23, 2014, the proceeding was assigned to Part L for trial, the trial commenced on that date and continued on July 2, and on August 20, 2014, when the trial was completed. The proceeding was adjourned to September 30, 2014, for the submission of post trial memoranda, and on September 30, 2014, the court reserved decision.



PRIOR RELATED PROCEEDING



Petitioner had commenced a previous nonprimary residence holdover proceeding against Respondent under Index Number 63390/2007 in April of 2007 (Ex A). The predicate notice in that proceeding made similar allegations to the predicate notice in the current proceeding, and [*3]both parties were represented by the same counsel.



That proceeding was settled pursuant to a stipulation on August 15, 2007 (Ex B). The stipulation provided that Petitioner agreed to discontinue the proceeding with prejudice, and that Petitioner acknowledged there was no longer any factual basis to pursue the petition. Petitioner agreed to renew Respondent's lease with no increase, and Respondent agreed to pay arrears. The stipulation further provided that "(t)he Tenant may continue to care for his mother as needed, and once that care is no longer necessary, the Tenant will resume staying at the subject premises."

FINDINGS OF FACT



Petitioner is the deed owner of the Subject Premises pursuant to a deed dated December 17, 1960 (Ex 1). Respondent is the tenant of record for the Subject Premises pursuant to an original lease dated February 6, 1984 (Ex 4) and most recently renewed on August 17, 2007 for a period through and including November 16, 2009 (Ex 5). The legal registered rent for the Subject Premises is $1179.35 as of June 2013 (Ex 3). There was a valid MDR for the Subject Premises through and including September 1, 2014 (Ex 2).



As noted above, as of August 2007, Respondent was staying upstate to care for his mother who was ill. Respondent's mother passed away on September 25, 2007 (Ex 17). Her will was probated in Surrogate's Court in Erie County. Respondent filed documents related to said probate on February 2008 listing the Shimmerville Road home as his domicile (Ex 17). Respondent's mother had three other children, Chrisitna Veiders who resides in Connecticut, and Timothy Veiders and Christopher Veiders who reside in upstate New York (Ex 17). Letters testamentary issued to Respondent for his mother's estate in February 2008 (Ex 17).



Respondent's aunt, Mary Domster died on February 19, 2007 (Ex 18). Respondent was the administrator of his aunt's estate and the Surrogates Court papers related to this estate Respondent listed his domicile as being at the home on Shimmerville Road as of March 2007 (Ex 18).



The first witness to testify for Petitioner was Perveiz Naroo (Naroo). Naroo is employed by Petitioner as a doorman at the Subject Building. Naroo has worked at the building in this capacity for over 17 years. Naroo knows Respondent. Since July 2007, Naroo has worked from 8 am to 4 pm.



Entered into evidence as Petitioner's 6 was a log book tracking the comings and goings of Respondent maintained by staff at the subject building. The log book showed Respondent was absent from the Subject Premises for most of the time between February 2007 and December 2008. The log book shows Respondent was at the Subject Premises for approximately 9 days from February 2007 through the end of the year, 33 days in 2008 and approximately 130 days from January through November 2009. This is close to Respondent's own testimony at trial. Respondent testified that he spent 6 nights in the Subject Premises in 2007, 25 nights there in 2008, and approximately half the year there in 2009.



Respondent was also called by Petitioner to testify. Respondent's father was Raymond W. Veiders Jr and died in 1994. After the death of Respondent's mother, Respondent was the executor of his mother's estate and lived alone in the house on Shimerville Road. Respondent was also managing an apartment complex in Batvaia, New York , which is owned by a corporation in which Respondent is a shareholder and Chief Executive Officer.The apartment complex consists of five buildings with a total of twenty residential units situated on six acres of [*4]property.



During the relevant two year period, Respondent acknowledged his primary source of income was derived from managing the apartment complex. Respondent continues to manage said property today and the family maintains a unit in the complex for the use of Respondent and his suiblings.



Respondent has a valid New York State Driver's license. The license lists the Shimerville Road address as Respondent's residence. The license was issued in June 2009 and is valid through January 2018 (Ex 15). Three other driver's licenses were entered into evidence, one for the period of June 2008 through January 2013, one for January 2005 through January 2013, and one for June 1996 through January 2000. All three licenses also list the home on Shimerville Road as Respondent's residence. Other DMV documents also reference upstate addressees for vehicles owned and used by Respondent (Exs 13-16).



At the Shimerville Home, Respondent maintained and paid for a Verizon Account which was in the name of his deceased father. Statements for this account covering a period from November 2007 through November 2009 were put into evidence (Ex 7A).Respondent received and paid the bills for this account.



Similarly, MCI statements were also sent to Respondent, in the name of his deceased father, at the Shimerville Home for the two year period between November 2007 and November 2009. Respondent received these statements and paid the bills (Ex 8A).



Time warner cable account was maintained at the Shimmerville Home during this period (Ex 19). The Court finds that this service was primarily used by Respondent. Similarly, gas was consumed at the Shimmerville Home and used during this period (Ex 9).



In the Subject Premises, Con Edison records show minimal usage for the period covering November 2007 through November 2008 (Ex 21).



Respondent continued to file taxes listing the Subject Premises as his address for the tax years 2007 through 2009 (Exs D, E & F) and paid New York City Taxes for this period. Respondent maintained a Verizon account at the Subject Premises (Ex I), and the statements for this account continued to be sent to him at the Subject Premises. The account shows that the service continued to be used at the Subject Premises. Similarly, Respondents' credit card statements continued to be used and sent to him at the Subject Premises (Exs L & M).



The Shimmerville home was sold in November 2011 (Ex F). While Respondent continues to manage the apartment complex upstate, he does primarily from New York City.



DISCUSSSION



§ 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 then such housing accommodation as a place of residence on any tax return, motor vehicle registration, driver's license or other [*5]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 than 183 days in the most recent calendar year; except for temporary periods of relocation pursuant to section 2523.5(b) of this title.



§ 2523.5(b)(2) of the RSC provides that temporary periods of relocation shall include periods where the tenant is hospitalized for medical treatment or has such other reasonable grounds as determined by DHCR.



Petitioner did establish on its prima facie case that Respondent was absent from the Subject Premises for more then 183 days per year during the relevant period and that Respondent listed an address other then the Subject Premises as his address on DMV documents and other documents filed with public agencies.



However, the court finds that Respondent's absence from the Subject Premises was both temporary and excusable, in light of Respondent's long term tenancy and considering the entire history of the tenancy (Four Winds Assocs. v Rachlin 248 AD2d 352), and that at no time did Respondent give up the Subject Premises as his primary residence. In fact the evidence at trial support's Respondent's position that he intended to return to living in the Subject Premises after winding up the estates of his mother and aunt, and that he in fact did so, selling the Shimmerville Road home. Respondent's absence initially commenced to care for his ill mother and the continued through the time needed to wind up the estates of his mother and his aunt and deal with an emergency at the apartment complex he was managing in December 2008 (see eg Ex Q).



Respondent undertook significant work at the Shimmerville Home to prepare the property for sale. Respondent had to sort through a lifetime of his parents belongings and property as well as that of his aunt. Respondent encountered resistance from another family member in resolving his aunt's estate that led to delays in this regard. The state of Respondent's aunt was not finally settled until March 2009 (Ex T).



Finally in or around 2010 Respondent suffered from some health issues, including epilepsy and seizures, which slowed down finalizing these projects.



Respondent has lived on the Upper East Side since the 1970s and in the Subject Premises since 1984.



Respondent consistently returned to the Subject Premises, while he was dealing with his family affairs upstate, he kept all his personal belongings except some limited clothing in the Subject Premises, and continued to receive mail there (Exs I, K, l, M, W, X, Y, Z). Respondent did not sublet the Subject Premises at any time [RSC § 2520.6(u)(iv)]. The court found Respondent and Chrisitna Veiders, his sister to be credible witnesses.



Courts have found temporary absences to be excusable in situations where a tenant was caring for elderly parents (542 East1 4th Street LLC v Lee, 66 AD3d 19) but maintained a physical nexus with the apartment. The court finds that Respondent's absence for the two year period, is excusable in light of the documented need for him to be upstate temporarily and considering the entire history of his thirty year tenancy.



Both parties reference this Court's recent decision in 449 West 46 LLC v Timmerman (44 Misc 3d 1218[A]) in their briefs, where the court found in favor of the landlord in a nonprimary residence proceeding. However, in Timmerman, the tenancy at issue was of significantly shorter duration, the tenant did sublet the premises in his absence and most importantly the court found that the tenant lacked credibility. For those reasons the court does not find the holding in Timmerman applicable to the case at bar.



Based on the foregoing the petition is dismissed.



This constitutes the decision and order of this court.[FN1]



Dated: October 14, 2014

New York, NY



____________________



Hon. Sabrina B. Kraus,J.H.C.

Footnotes


Footnote 1:The parties may pick up their exhibits from Window 9 at the second floor of the court house within 30 days of the date of this decision. After said period the documents may be shredded in accordance with administrative directives.