Trial Testimony Proves Tenant Is Primary Resident

Landlord sued to evict rent-controlled tenant for nonprimary residence. Landlord claimed that tenant rarely picked up her mail at the building, that its managing agent rarely saw tenant at the building, and that tenant often stayed uptown at a friend's apartment.
The court ruled against landlord. Landlord presented no documents showing that tenant listed any other address on her tax returns, driver's license, voting registration, or any document filed with any public agency. Tenant didn't sublet the apartment, and landlord didn't show that tenant spent less than 183 days at the apartment during the prior year. Con Ed records showed estimated, not actual, readings. Con Ed records also showed no electric usage from January 2005 through October 2006, but Con Ed's employee stated at trial that this must be an error. Landlord's managing agent worked in the building during the day and said she rarely saw tenant. The building super testified that he saw tenant in the mornings. Tenant herself testified that she worked in a hospital and sometimes worked late. Sometimes she stayed at a friend's apartment uptown and house-sat for that friend when the friend traveled. The friend testified to this effect as well. The court found the tenant, her friend, and the super more credible than landlord's managing agent.

Dixon Holdings LLC v. Fenton: NYLJ, 11/25/09, p. 27, col. 3 (Civ. Ct. NY; Kraus, J)