Despite Tenant’s Ownership of a Home and Taxes Filed at a Different Address, Adam Leitman Bailey, P.C. Prevailed In Establishing Primary Residence

By Vladimir Mironenko


Adam Leitman Bailey, P.C., successfully defended a Manhattan rent stabilized tenant in a  non-primary residence proceeding. After a contested trial, the Court dismissed the landlord’s petition. The Court held that the landlord failed to meet its burden of proof to demonstrate that the tenant did not primarily reside in the subject premises (i.e. maintain an “ongoing, substantial, physical nexus with the controlled premises for actual living purposes”).

Our client moved into the subject apartment almost twenty years ago after immigrating from China. His wife and young children lived in the apartment with him. Eventually, he and his wife divorced. Our client purchased a house in Brooklyn; his ex-spouse and several children moved into the house. Our client remained in the apartment with one of his daughters. He was registered to vote from the apartment, maintained utilities in the apartment in his name and did not sublet the apartment. However, because the Brooklyn house was owned in his name, that the mailboxes in the Manhattan building were constantly broken and mail was being stolen, that he spoke virtually no English, and that his Brooklyn daughter (who works in finance) managed all of his affairs, many of our client’s documents were addressed to the Brooklyn house. These included his tax returns.

ALBPC guided the client through the discovery process, including document production and deposition. After discovery was complete, the landlord moved for summary judgment. The landlord, relying on a string of recent case law, asserted that the tax returns were dispositive. We distinguished the cases because, although the address on our client’s tax returns linked him to Brooklyn, paying great attention to detail and analyzing the documents, we found that the Brooklyn house was listed as a rental residence and that our client noted that the house was not occupied by him on all 365 days of each year in question. Moreover, although our client worked part-time in Maryland during the relevant time period, we argued that based on his daily rate and the total amount of his earnings for the respective years, the landlord could not establish that our client was away from the subject apartment for more that 183 days in any year.

The matter proceeded to trial. At trial, we aggressively cross-examined the landlord’s witnesses and demonstrated that none of them had personal knowledge of the client’s whereabouts during the time in question or could demonstrate that our client ever sublet the subject premises. Our client and all of our witnesses credibly testified that our client continued to primarily reside in the subject apartment, not in the Brooklyn House. The matter came down to the documentary evidence. Based on longstanding case law, we argued that ownership or interest in real property other than the subject premises is not dispositive in a non-primary residence case. We also argued that the tax returns are not dispositive because, contrary to the facts of the cases cited by the landlord, our client did not take an inconsistent position on the tax returns and the returns actually confirmed that he did not occupy the Brooklyn House.

After trial, the Court found our witnesses to be credible and concluded that, “Respondent established through his own credible testimony, and that of the other family members that Respondent has continuously lived in the Subject Premises from 1994 through the date of the trial.” The Court also adopted our position concerning the tax returns, holding that, “While the tax returns of Respondent also list the Brooklyn House as his mailing address each return specifically states that Respondent does not occupy the Brooklyn House for personal use, and Respondent has always paid all New York City taxes required of a New York City resident. The Court dismissed the petition.

Vladimir Mironenko and Christopher Halligan of Adam Leitman Bailey, P. C. represented the tenant.

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