BACKGROUND

This summary holdover proceeding was commenced by BDS ASSOCIATES, LLC (Petitioner) against QI SONG LIN (Respondent), the rent stabilized tenant of record of 203 EAST 14TH STREET, APT 8, NEW YORK, NEW YORK 10003 (Subject Premises), based on the allegation Respondent has not maintained the Subject Premises as his primary residence. [*2]RONG LING LIN(Rong) is Respondent's daughter but does not live in the Subject Premises. RONG LAN LIN(RLL) was not named or served in this proceeding but is Respondent's daughter and resides in the Subject Premises.

Petitioner issued a notice of nonrenewal dated December 12, 2012 stating: that Respondent was not maintaining the Subject Premises as his primary residence; that Respondent had not been seen at the Subject Premises since approximately June 2009; that Respondent had moved to 771 48th Street, Brooklyn, New York 11220 (Brooklyn House); that Respondent used that as his address for banking, credit and taxes purposes; that Respondent maintained utility and phone accounts at the Brooklyn House; and that Respondent obtained a drivers license in 2009 listing the Brooklyn House as his address.

Respondent's last lease expired March 31, 2013.

The petition is dated April 11, 2013, and the proceeding was initially returnable May 1, 2013. Respondent and RLL jointly appeared by counsel and filed an answer denying specific allegations in the petition, asserting lack of personal jurisdiction and a claim for attorneys' fees.

The proceeding was adjourned to May 29, 2013 per stipulation. On May 29, 2013, respondents entered into a stipulation consenting to the jurisdiction of the court and waiving traverse claims. Respondent consented to discovery, and the proceeding was marked off calendar pending the completion of discovery.

Respondent appeared for a deposition on August 21, 2013 (transcript admitted as Ex 12).

On February 6, 2014, Petitioner moved to restore the proceeding to the calendar and proceed with the trial. On April 12, 2014, the motion was granted on consent and the proceeding was adjourned to April 30, 2014 for all purposes.

On December 9, 2014, Petitioner moved for summary judgment. Petitioner argued it was entitled to summary judgment because Respondent owns the Brooklyn House, has a mortgage requiring he occupy said premises as his primary residence, and because Respondent lists it as his address on various documents and on his tax returns.

The motion was denied by the court (Wendt, J), pursuant to a decision and order issued July 14, 2015. The court found there were material issues of fact concerning whether Respondent resided in the Subject Premises during the relevant period which required a trial. The proceeding was adjourned to August 19, 2015 for trial.

The proceeding was adjourned over a number of dates by stipulation of the parties. On November 30, 2015, Petitioner moved for an order directing respondents to pay $28,792.00 in use and occupancy for the period of April 2013 through November 2015. The motion was granted by the court (Wendt, J) on the return date, to the extent of directing Respondents to pay two months use and occupancy at $899.75 per month by December 1.2015.

On December 1, 2015, the proceeding was assigned to Part R for trial, and certain documents were marked into evidence. The trial continued on January 12, 2016 and concluded on January 13, 2016. The court heard closing arguments and reserved decision.

Petitioner is the owner of the Subject Building pursuant to a deed dated May 10, 2012 (Ex 1).There is a valid MDR on file with HPD (Ex 2).

Respondent is the rent stabilized tenant of record of the Subject Premises, pursuant to a written lease agreement. Renewal leases pertaining to Respondent's tenancy for the years 1997 through 2008 were admitted into evidence (Ex 4). The legal registered rent for the Subject [*3]Premises as of July 19, 2015 is $899.75 (Ex 3).

Respondent purchased the Brooklyn House pursuant to a deed dated June 30, 2003 (Ex 5M). The Brooklyn House is a two family dwelling. Respondent took out a mortgage for the purchase in the amount of $371,000.00. A copy of the mortgage was submitted into evidence (Ex 5N). Article 6 of the mortgage provides that Respondent will occupy the premises as his principal residence within sixty days of execution of the mortgage, and that he will maintain it has his principal residence for one year. However, there is a rider to the mortgage for multifamily homes which provides that the requirement in Article 6 is inapplicable unless otherwise agreed in writing (Ex 5N).

Respondent maintains a Con Edison account at the Brooklyn House. A page from a statement from May 2012 for said account was admitted into evidence (Ex 5D), a page from a 2013 statement was also admitted (Ex 5K).

Respondent has a citibank account wherein he lists the Brooklyn House as address and for which statements are sent to Respondent at the Brooklyn House. Some statements for 2011 were submitted into evidence (Ex 5I). The records for this account for 2011 and 2012 were also produced by Citibank pursuant to a subpoena and admitted into evidence (Ex 6).

Subpoenaed records from DMV were submitted into evidence (Ex 9). The DMV records show that Respondent obtained a drivers license listing the Subject Premises as his address in 1996, that in 2009 a license was obtained using the Brooklyn House as Respondent's address.

Records from the Board of Education show that Respondent registered to vote from the Subject Premises in 1996 (Ex 8) and that there is no record of Respondent being registered to vote from the Brooklyn House.

Respondent has a ROTH IRA the statements for 2012 were sent to the Brooklyn House (Ex 5-G).

All Respondents banking records and documents related to health insurance are sent to the Brooklyn House.

Respondent's 2011 1040 tax return lists the Brooklyn House as his home address. However, a schedule E to the 1040 form indicates that he rented out the Brooklyn Home for 365 days of the year and did not personally occupy it on any days in 2011. The 2012 return also indicates that Respondent did not personally occupy the Brooklyn House on any days in 2012 (Ex 5H) as do Respondent's tax returns for 2009 and 2010 (Ex 7).

Respondent reported receiving $21,600 in income for rent for the Brooklyn House in 2011 (Ex 5A). Respondent testified that he does not know whether he received rent for the Brooklyn House, Rong handled that.

The first witness called by Petitioner was Respondent. Respondent first came to the United States in 1985. Respondent is 63 years old. Respondent moved into the Subject Premises in 1994, with his wife, and four children.

In 1996 when Respondent was naturalized he filed appears for name change to Wilson Lin. Respondent used that name for a period, but then discontinued using that name because it did not match the name on his social security card.

The Subject Premises has two bedrooms one large and one small. Two people slept in each bedroom and two people slept in the living room.

Respondent only speaks a few words of English.

In April 2013 Respondent transferred a 50% interest in the Brooklyn House to his daughter Rong. The deed effectuating said transfer was admitted into evidence (Ex 11).

Respondent and his wife divorced in 1997, but continued to live in the Subject Premises with their children until 2003, when Respondent's wife moved to the Brooklyn House, with Respondent's son and two daughters. The divorce was due to personality conflicts and Respondent and his wife were getting along.

RLL kept living with Respondent at the Subject Premises. RLL lived at the Subject Premises from 1994 forward.

Respondent testified that from 2000 forward he had problems with the mailbox at the Subject Premises. Respondent testified that the mailbox would not close and mail was sometimes lost. Respondent has always had a key to the mailbox and has always continued to receive mail at the Subject Premises. RLL also has a key to the mailbox.

Petitioner replaced the mailboxes in the subject building in February 2013 (Ex E).

Rong transferred the mail to the Brooklyn House for various documents between 2006 and 2008. From 2007 to present, Rong has been managing Respondent's finances. The court finds that problems with the mailbox are not related to Respondent's using the Brooklyn House for his documents, that the address was changed on the documents by Jong for her convenience after she moved as indicated in her testimony, because of Respondent's lack of fluency in English and because Jong handled all Respondent's affairs.

Since 2003, Respondent has only spent one night in the Brooklyn House.

From 1994 through 2007, Respondent was a restaurant worker. Respondent worked inside the kitchen and cooked. After 2007, Respondent only worked sporadically. There was a two year period in 2011 and 2012 where Respondent worked in a restaurant in Maryland, filling in for someone else. Respondent worked there every month or two for a few days at a time. Respondent worked more days in Maryland in 2011 then in 2012.

Usually, Respondent went to Maryland for 4 days at a time, and Respondent estimates he spent a total of 70 to 80 in Maryland over those two years. Respondent stayed in housing provided by his employer with the other workers when in Maryland, Respondent does not know the address where they stayed but they got there by taking a Chinese mini bus in the evening.

In Maryland, Respondent worked in the kitchen of a restaurant cutting up meat and vegetables, keeping the place clean, and packaging orders. Respondent was paid $125 per day by checks which were sent to him.

Respondent's W-2 for 2011 reported $6000 in income from work at the Maryland restaurant (Ex 5A) which, at a rate of $125 per day, would mean that Respondent worked a total of 50 days in Maryland in 2011. The 2012 W-2 for the same restaurant shows income of $2500 which would be wages for twenty days work (Ex 5E).

The next witness called by Petitioner was Dora Shore (DS). DS is member of Petitioner. When Petitioner purchased the property in May 2012, a list of tenants was provided. DS visited the Subject Premises soon after the purchase and found a young women living there. DS had a conversation with her, and then had an investigation done regarding the occupants of the Subject Premises. DS does not recall who she spoke to, only that it was a young girl in her 20s with the last name of Lin. Petitioner also conducted investigations of tenants in the building before May 2012.

After the investigation, Petitioner decided to commence this proceeding and issued a notice of nonrenewal. DS signed the notice. DS reviewed the document before she signed it. The facts alleged in the notice were obtained through the investigator.

DS may visit the subject building once or twice a month. DS does not recall ever seeing [*4]Respondent at the subject building.

Petitioner has a super who continued from the prior owner. The super's name is Juan Aquino (JA) and he was the next witness called by Petitioner. JA is familiar with the subject building. JA cleans up the building and picks up the garbage. Garbage is JA's primary job in the building. Garbage is located in the entrance of the building. JA has been employed at the building for 12 years.

There are 10 apartments in the building. JA is familiar with the Subject Premises. JA has been in the Subject Premises on many occasions. JA goes to the building daily in the morning and in the afternoon. JA sees some tenants coming and going. JA gets there at different times in the morning. JA dose not do any repair work in the building. JA has done work in the Subject Premises, but it was a long time ago and JA does not recall when it was. JA does not know Respondent. JA knows RLL.

JA sees RLL all the time when she comes back from work. JA saw her in December and now. JA first saw RLL a long time ago JA does not recall how long ago it could have been 10 years.

The court did not find that either DS or JA had first hand knowledge about Respondent's occupancy of the Subject Premises and does not give their testimony much weight for this reason.

After JA's testimony, Petitioner rested. Respondent made a motion to dismiss which the court denied on the record.

The first witness called by Respondent was RLL. RLL confirmed that she and Respondent have continuously resided at the Subject Premises since 1994. RLL was born in 1982, and is 33 years old. RLL's testimony confirmed that when Respondent purchased the Brooklyn House, RLL's mom, brother and two sisters all moved out.

RLL testified that Respondent can't really express himself in English, and her mother speaks even less English then Respondent.

RLL didn't move to the Brooklyn House with the rest of the family, because she was always closer to Respondent and RLL did not want to leave Manhattan. RLL never lived in the Brooklyn House. Rong is handling Respondent's financial affairs because RLL is not a responsible person and Rong works for a bank and has greater knowledge of financial issues.

RLL confirmed that the only times Respondent was absent from the Subject Premises in 2011 and 2012 is when he was working in Maryland or vacationing in China. When in China, Respondent did maintenance on a home owned by his family.

Respondent has been to the Brooklyn House for family gatherings. RLL was last there last weekend. The two family house is divided into upper and lower units with one main entrance. Mom stays on the upper floor with RLL's sister. RLL's Brother, is 36 years old, and lives on the first floor with his wife and child. RLL's older sister, Xue Quing Lin (XQL) no longer lives there, she moved to Maryland a long time ago, when she got married.

The court found RLL to be a credible witness.

The next witness called by Respondent was Rong. Rong is also known as Christy. Rong is 32 years old, and has lived at the Brooklyn House since 2003. Rong is a banker and works for Meryl Lynch. Rong has been employed as a banker since 2005, when Rong graduated from school.

Rong moved to the Brooklyn House in 2003. Rong manages Respondent's affairs [*5]because she's the more responsible child and she studied finance in school. Rong handles the family bills, taxes, and banking. Rong does this for both her parents and to some extent for her siblings.

From 2007through 2012, Rong paid all the bills for the Subject Premises, including rent and utilities. RLL gave Rong the money for the rent for the Subject Premises on a monthly basis. Respondent sometimes contributed to the rent, but only sporadically and not at any set amount. In June 2012, Petitioner started rejecting checks from Rong (Ex F). From that point on RLL paid the rent for the Subject Premises directly to Petitioner, using checks that were in Respondent's name.

Rong pays most of the mortgage at the Brooklyn House, but her family also contributes.

Initially after Rong moved out of the Subject Premises, the bills continued to be sent to the Subject Premises until Rong graduated from school. Then Rong slowly started to transfer bills to the Brooklyn House because it was more convenient for her.

Rong told the accountant that Respondent lives in Subject Premises, but that the accountant should put the Brooklyn House address on the return for Respondent so Rong would be sure to receive any checks or correspondence. Rong also told Respondent to put the Brooklyn House address on his W2s, when he worked for the restaurant in Maryland, so all correspondence would go to Rong.

Rong renewed Respondent's driver's licence on line and used the Brooklyn House address so all correspondence would come to her attention. Rong does not recall the year she did this.

Rong visits Respondent at Subject Premises. Respondent has no routine she will stop by when in the area. In 2012, Rong probably visited Respondent at Subject Premises once or twice a month. Rong probably went less in 2011, because her job required more of her time that year.

The next witness called by Respondent was Sai Yue Yang (SY). SY is Respondent's ex wife. SY has lived at the Brooklyn House since 2003, and before that SY lived in the Subject Premises. SY moved from Subject Premises to the Brooklyn House, because she didn't get along with Respondent. Respondent and SY have clashing personalities and they do not spend much if any time together. SY testified that Respondent only goes to the Brooklyn House for special occasions like the Chinese New Year. On such occasions, Respondent has dinner with the family and then returns to 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.

The essence of the nonprimary residence claim is that the tenant lacks an "ongoing, substantial, physical nexus with the controlled premises for actual living purposes (Emay Props. Corp. v. Norton, 136 Misc 2d 127, 129)."

Petitioner had the burden in this proceeding to establish that Respondent failed to maintain the Subject Premises as his primary residence (Sharp v Melendez 139 AD2d 262, 264). Petitioner failed to meet its burden.

Petitioner failed to establish that Respondent specified another address for voting purposes, that Respondent spent less than 183 in the Subject Premises in the most recent calendar year or that Respondent ever sublet the Subject Premises.

Respondent established through his own credible testimony, and that of the other family members that Respondent has continuously lived in the Subject Premises from 1994 through the date of the trial. Jong credibly explained that after she graduated college in 2005, she began to have all of Respondent's document sent to the Brooklyn House because of Respondent's limited ability to understand English and because she handled all of Respondent's finances and affairs (310 East 23rd LLC v Colvin 41 AD3d 49 documentary evidence does not preponderate over inconsistent testimonial evidence where there is credible testimony explaining connection to another premises).

Petitioner presented no witnesses who contradicted the testimony of Respondent and his family members in this regard. In fact, Petitioner presented Respondent as its own witness. Neither DS nor JA had first hand knowledge of where Respondent was living during the relevant period. Nor does the fact that Respondent occasionally traveled to China, or worked for 50 days in Maryland in 2011 change the fact that Respondent has always continued to maintain an actual and substantial tie to the Subject Premises as his home and for living purposes.

While the tax returns of Respondent also list the Brooklyn House as his mailing address each return specifically states that Respondent does not occupy the Brooklyn House for personal use, and Respondent has always paid all New York City taxes required of a New York City resident. This case is distinguishable from Ansonia Associates Limited Partnership v Unwin 130 AD3d 453) and Goldman v Davis (49 Misc 3d 16) where the tenants deducted the full amount of the rent for their rent regulated apartments as a business expense on taxes, representing to the government that no part of the premises was used for personal purposes.

Based on the foregoing the petition and proceeding are dismissed.

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