Court, Not DHCR, Must Determine if Apartment Is Rent-Stabilized Tenant's Primary Residence

Landlord sent tenant a notice of lease nonrenewal based on claimed nonprimary residence. Tenant then filed a complaint with the DHCR based on landlord's failure to offer her a renewal lease. Landlord commenced an eviction proceeding based on nonprimary residence when the nonrenewal notice expired. Tenant asked the court to stay the court case until the DHCR ruled on her complaint. The court ruled for tenant.

Landlord appealed and won. Rent Stabilization Code Section 2524.4(c) states that a landlord may recover possession of a rent-stabilized apartment if it "is not occupied by the tenant...as his or her primary residence," and Rent Stabilization Law Section 26-504(a)(1)(f) states that the tenant's primary residence is to be "determined by a court of competent jurisdiction." So, the stay of the nonprimary residence holdover proceeding pending the DHCR's determination was improper. The court also can determine whether tenant had a valid excuse for her absence from the premises. The court also noted that the DHCR recently had dismissed tenant's lease renewal complaint.

Jopep LLC v. Cardo: Index No. 570124/24, 2024 NY Slip Op 50764(U)(App. T. 1 Dept.; 6/25/24; Hagler, PJ, Tisch, James, JJ)