Apartment Used for Storage and Mail Drop Isn't Primary Residence

Facts: Landlord sued to evict rent-stabilized SRO tenant for nonprimary residence. The trial court ruled for landlord in 2005. Although tenant moved into the apartment in 2000, he spent virtually all of his time living on the streets within a 20-block area near the apartment. Tenant used the apartment to store his personal belongings and for a mailing address. He didn't keep a key to the apartment. He gave it to his girlfriend, who sometimes used the shower and kept her personal belongings there. The court found that tenant didn't use the apartment as his primary residence because he didn't maintain sufficient connection for living purposes. Tenant appealed. The appeals court ruled for tenant, finding that tenant had no other residence. Landlord then appealed.

Court: Landlord wins. A tenant who doesn't actually live in a rent-stabilized apartment and who had no intent to return there can't hold on to the apartment indefinitely. Tenant's mental illness didn't excuse his absence. The rent stabilization law doesn't require landlord to prove that tenant had another primary residence. Landlord needed to show only that the apartment in question wasn't tenant's primary residence. Landlord proved that in this case. Also, the fact that the building was in disrepair and had to be vacated for repairs in 2007 didn't change the fact that tenant stayed away from the apartment because of his mental illness, not because of building conditions.

TOA Construction Co., Inc. v. Tsitsires: NYLJ, 7/11/08, p. 26, col. 1 (App. Div. 1 Dept.;Saxe, Gonzalez, Sweeny, JJ, Andrias, Jand Mazzarelli, JP--dissenting)