Tenant's STAR Exemption for Yonkers House Didn't Preclude Primary Residence in Manhattan

Landlord sued to evict rent-stabilized tenant for nonprimary residence. Tenant didn't respond to landlord's court petition, but tenant's son claimed that tenant had moved out and that he had succession rights to the apartment. Landlord asked the court to rule against tenant and her son without trial. The court ruled against landlord, finding that a trial was needed to determine the facts.

Landlord appealed and lost. Landlord claimed that tenant had moved out in 2010 and that she and her son concealed this fact. But there had been no pretrial questioning or document production in the case so far and there were questions as to when tenant permanently vacated the apartment and whether her son lived with her in the apartment during the two-year period immediately before she moved out. Landlord's agent submitted a sworn statement stating that tenant had abandoned the apartment in 2010 and was rarely seen there. But this statement wasn't based on his personal knowledge. He saw tenant in the apartment in 2018, and she denied then that she had abandoned the unit.

The fact that tenant received a School Tax Relief (STAR) tax exemption for a jointly owned house in Yonkers also didn't determine her primary residence. It was one factor to be considered among others. A property receiving a STAR exemption was supposed to be the primary residence of at least one of its owners, so tenant didn't necessarily have to primarily reside there. Also, under prior case law, the fact that tenant represented in the STAR application that the Yonkers premises was her primary residence didn't prevent her from claiming that the apartment was her primary residence during the same period. The case was sent back to the housing court.

66 Fort Wash. Assoc. LLC v. Acevdeo: 2020 NY Slip Op 51270(U), Index No. 570137/20 (App. T. 1 Dept.; 10/30/20; Edmead, PJ, Higgitt, McShan, JJ)