Landlord Didn't Prove Tenant Lived with Girlfriend in New Jersey

Facts: Landlord sued to evict rent-controlled tenant for nonprimary residence. Landlord claimed that tenant lived in New Jersey with his girlfriend. Tenant claimed that he only spent weekends at his girlfriend's apartment. His name wasn't on her lease, it never had been, and he didn't pay rent for the girlfriend's apartment. Although he contributed to his girlfriend's utility payments, tenant had no joint bank accounts or credit accounts with his girlfriend. He had a checking account at a bank near his New York apartment and kept a savings account in a New Jersey bank. But ATM receipts showed he used that account only on weekends. Landlord's witnesses said they never saw him, but this was during the daytime, when tenant was at work in the Bronx. Tenant's phone bills from the New York apartment showed some long distance usage. Con Ed records for the apartment showed significant variations in use from month to month. Witnesses for tenant stated that they saw him three or four times per week near the apartment on a regular basis. Court: Landlord loses. Landlord didn't prove nonprimary residence. Tenant believably testified that he stayed at his apartment four nights per week. Landlord didn't submit tenant's local phone records into evidence, and the long distance records support tenant's claim. The fact that tenant's girlfriend didn't appear as a witness wouldn't be held against tenant. She lived in New Jersey and couldn't be forced to appear in a New York court.

215-17-19 W. 106 St. Realty Assocs. v. Franqui: NYLJ, 11/28/00, p. 26, col. 4 (Civ. Ct. NY; Wendt, J)