Tenant at Apartment Only 17 Percent of the Time

Facts: Landlord sued to evict rent-stabilized tenant for nonprimary residence. Tenant was 72 years old and had lived alone in the three-bedroom apartment more than 30 years. At trial, the building super testified that for two years between December 2005 through November 2007, he saw tenant at the building only four or five times. An investigator hired by landlord presented video recording evidence and testified that cameras were installed in the elevator, by an exit, and in the building stairway. Between September 2007 and April 2008, time-lapse video was continually recorded and saved. The investigator presented 43 tapes and DVDs showing tenant at the building only 37 times in 220 days. Con Ed bills for the period in question showed electric usage from only $13 to $25 per month.

Tenant testified that he had no other residence, and neither owned nor rented any other property. Tax, voting, Social Security, and driver's license records all listed the apartment as tenant's address. Tenant had worked in New York City until 1999, then in Connecticut until 2004, then at a Colts Neck, N.J., golf club. He claimed that he stayed at a cottage at the golf club occasionally, but never more than a few days in a row. Tenant kept his car in Colts Neck, and it was registered there. He said that he used the car to run work-related errands and that he took a train from New York and then a cab to get to and from work, leaving early in the morning.

Tenant had no land-line phone at the apartment and no cell phone records were presented. Tenant had no cable TV at the apartment. Tenant said that he often did his banking and shopping in New Jersey because it was convenient. His bank records showed significantly more transactions in New Jersey than New York. Tenant said that he had no email account, although bank records showed automatic deductions to pay for AOL.

Court: Landlord wins. The video evidence was reliable and showed that tenant slept at the apartment roughly only 17 percent of the time. The video records were consistent with the banking records as to periods of absence from the apartment. The Con Ed records showed relatively low usage. Landlord didn't prove an alternate primary residence, and the court didn't find that the Colts Neck cottage was tenant's primary residence. But tenant didn't otherwise explain his whereabouts, and landlord proved that tenant didn't maintain a sufficient connection to the apartment to call it his primary residence.

156 East 37th Street LLC v. Black: 2009 WL 4782737, L&T Index No. 57431/08 (Civ. Ct. NY; Kraus, J)