Tenant Primarily Resides in Massachusetts Home

(Decision submitted by Gerald Shapiro of the Manhattan law firm of Mitofsky Shapiro Neville & Hazen LLP, attorneys for the landlord.)

Landlord of a condominium unit sued to evict rent-stabilized tenant based on nonprimary residence. Landlord claimed that tenant and her husband lived primarily in Becket, Mass., or in Florida. The court ruled for landlord after a trial. Landlord's managing agent testified that he lived in the building and that from 9 a.m. - 10 a.m. Mondays through Fridays he was stationed at the front desk. During 2009, 2010, and 2011, he saw tenant at the building two or three times per year. The building doorman testified that he had worked for 30 years from 7:30 a.m. - 3:30 p.m. Tuesday through Saturday. He said that during 2009, 2010, and 2011, he saw tenant at the building two-three times per year. Another doorman/porter who worked nights stated that he saw tenant four to five times per year between 2009 and 2011. Another overnight doorman testified that he saw tenant and her husband three or four times per year.

Tenant testified that she had lived in the apartment since 1958, first with her mother and then under her own lease since 1970. She was a NYC school teacher who retired in 1995. She said she did volunteer work in NYC since then. She visited doctors in NYC during the years in question, voted in NYC, filed tax returns from the NYC apartment address, and had cars registered in NY State. Tenant said she had a Massachusetts driver's license because she didn't pass the NY driver's test.

Tenant met her husband in 2001. He primarily resided in Massachusetts while she primarily resided at the apartment. She spent time with him in Massachusetts given his various medical conditions. Tenant claimed that she spent more than half the days of each year in NYC. In pretrial questioning, tenant admitted that she spent no more than 112 days per year at the apartment during the years in question. Tenant also had substantial ties in Massachusetts. She owns two properties in Becket and paid income tax in Massachusetts. Tenant has an art studio and gallery in Becket and was the president of the Becket Art Center from 1999-2012. Tenant said that she voted by absentee ballot, but landlord presented documentation clearly showing that she did not.

Tenant's testimony wasn't credible. Evidence showed that she stayed at the apartment only when she had arts organization meetings in NYC. The court stayed eviction for four months to give tenant time to move out of the apartment.

219 West 81st Residential Holdings LLC v. Davidson: Index No. L&T 058159/11 (Civ. Ct. NY; 3/9/15; Wendt, J)