Tenant with Vacation and Winter Homes Retained Primary Residence at Apartment

Landlord sued to evict rent-stabilized tenant for nonprimary residence. Landlord claimed that tenant spent more than 183 days during the prior year living in East Hampton, N.Y., and Highland Beach, Fla. At trial, tenant showed that he was 89 years old and had lived at the apartment for 40 years. He used the East Hampton house as a weekend and summer home for himself and family members. In 2007, tenant and his girlfriend bought the Florida condominium and went to Florida from mid-December through mid-April annually.

Tenant received all of his mail at the apartment and never sublet it. Tenant's son occasionally stayed at the apartment. Tenant's tax returns listed the apartment as his home address. Tenant's doctors were all located in Manhattan, where he received his regular medical treatments. He was registered to vote in Manhattan for 45 years and never registered to vote anywhere else. After tenant retired in 2000, he began spending more time in Florida. Tenant's documents all show the apartment as his address, including bank statements and credit card statements. Tenant had a New York State driver's license issued in March 2009 that listed the apartment as his address. Tenant had two cars, one kept in Florida during the winter and one in East Hampton the rest of the year. The cars were registered in New York State.

Landlord presented video surveillance evidence showing that between May and December 2011, tenant spent between 96 and 106 days in the apartment, and that during 2012 he spent 134 days at the apartment. Landlord claimed that from August 2011 through August 2013, tenant was physically present in the apartment only one third of the time.

The court ruled against landlord. Proof that tenant spent less than a majority of his time at the apartment wasn't the only factor to consider. Tenant didn't list any other address on any document as his residence, never sublet the apartment, and never used another address for voting purposes. It was reasonable that after several decades in the apartment, tenant spent less time there since 2007 when he turned 89 and was retired. Tenant clearly has used and continues to use the apartment as his primary residence. A home used on weekends and during the summer months doesn't compel a finding of nonprimary residence. And the fact that tenant was a "snow bird" who spent four months a year in Florida in recent years didn't warrant a finding of nonprimary residence. Tenant continued to maintain an ongoing physical nexus with the apartment for living purposes as his primary residence.

RSP 86 Property LLC v. Sylvester: 43 Misc.3d 1225(A), 2014 NY Slip Op 50785(U) (Civ. Ct. NY; 5/16/14; Kraus, J)