Tenants Moved Out of Apartment Temporarily Due to Mold

Landlord sued to evict elderly rent-controlled tenants, husband and wife, for nonprimary residence. The court ruled against landlord after a trial. Landlord appealed and lost. Tenants had moved out of the Manhattan apartment in October 2000 and stayed with relatives in Queens because of mold infestation and other apartment conditions. In a prior lawsuit, another court ruled that the apartment conditions were "utterly deplorable." Tenants obtained civil penalties, a DHCR rent reduction order extending through October 2004, and a court ruling that they had been constructively evicted from the apartment. In a prior nonpayment proceeding, another court ruling found that the mold conditions were sufficiently remedied by June 2002. But there was a genuine dispute over whether the apartment was habitable for some time after that. Landlord made extensive repairs to the apartment between December 2003 and March 2004. And tenants moved back in full time by September 2004. While they were away, tenants kept their furniture and most of their personal belongings wrapped or in boxes in the apartment. Considering the entire history of their tenancy, tenants' delay in returning to the apartment didn't mean they had abandoned their primary residence.

157 East 57th Street LLC v. Birrenbach: NYLJ, 8/1/07, p. 35, col. 1 (App. T. 1 Dept.; McKeon, PJ, McCooe, Schoenfeld, JJ)