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Landlord-Tenant—Rent Stabilization—Jury Found Tenant Was Non-Primary Resident and Landlord Was Awarded Judgment of Possession—Tenant Claimed That He Traveled for Business and Analogized to Touring Entertainers

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By: Scott E. Mollen

August 20th, 2014

A jury had rendered a verdict in favor of the landlord in a non-primary residence proceeding. The tenant thereafter moved, inter alia, for a judgment notwithstanding the verdict. The court denied the motion and awarded the landlord a final judgment of possession.

The landlord contended that the tenant had spent 80 percent of his time in Argentina, living at a “2400 square foot house that he was redecorating for the better part of two years.” The tenant argued, inter alia, that the eviction case was brought “in part in retaliation” for the tenant “making demands about repairs and services.” The tenant claimed that his absence was related to “business/work reasons” and taking care of an injured friend elsewhere in the United States.

The tenant also asserted that mail and bills continued to come to the subject rent stabilized apartment, his furniture and personal possessions remained in the apartment, the landlord had failed to properly make repairs, the apartment had heating and hot water problems and the tenant had placed “leaflets under doors” and had tried to form a “tenants’ association.” The tenant testified, inter alia, that he had taken two trips to South America and had been delayed in South America because of a “music project” and a volcano in Chili.

The tenant also alleged that although guests had stayed at the apartment, he had never charged them any money, i.e., he did not sublease the apartment. Rather, he made “his home available to friends and business associates.” The tenant further claimed that he was only “crashing out” in Argentina, he did not have his own room or his own furniture and he was living out of suitcases. The tenant analogized his situation to that of an entertainer who is “touring around the country and in Europe.” He argued that there is nothing in the law that says if you have a rent stabilized apartment in New York, you lose it because “you travel for business or to pursue business ventures or try to get investors to come and invest with you in Argentina.”

There is no one-single factor that determines whether a residence is being used as a primary residence.

The landlord had cited the tenant’s bank records and noted that the tenant was not in New York for nine months in 2009, eight months in 2010 and the first six months of 2011. The landlord acknowledged that people can have multiple homes, but argued that if the tenant spent most of his time at the other homes, he could not say that New York is his primary residence. The landlord further noted that the tenant had bought a home in Buenos Aires.

The landlord asserted that he would like to get the apartment back and rent it to people who need it. The landlord contended that the tenant used the apartment for a “crash pad for his friends who travel around the world,” the tenant “didn’t work in Argentina,” “didn’t sell anything down there,” “had no business being down there” and he was “fixing up his mansion down there.” The landlord also argued that there was a paucity of proof with respect to building problems.

The landlord emphasized that he did not need to prove why the tenant was gone from the apartment or where the tenant lived. Rather, he only had to prove that the tenant “wasn’t using” the apartment as his primary residence. The court held that the landlord had met its burden.

The court found that the landlord had established that the tenant “did not have an ongoing substantive physical nexus with the premises for actual living purposes….” Since the jury’s findings of fact were not “irrational,” the court upheld the jury’s verdict.

The court also rejected the tenant’s argument that the landlord had failed to prove that it had served a Golub notice. The landlord’s “prima facie case was merely to prove respondent’s non-primary residence.” The petitioner did not have to prove, at trial, that “the court had jurisdiction over the respondent.” The court explained that although “service of the Golub notice is a prerequisite to commencing this holdover proceeding…; respondent’s mere denial of receipt is insufficient to warrant a traverse hearing, let alone raise a triable issue of fact.” The tenant had failed to raise this argument in its motion to dismiss and therefore had “waived this defense by failing to raise it prior to trial.” Moreover, such defense may have been irrelevant to the issues before the jury, since the tenant had not presented any facts or testimony on that point. Accordingly, the court awarded the landlord judgment of possession.

Comment: Adam Leitman Bailey, attorney for the landlord noted that the jury had considered “credit card statements, travel logs and passport stamps demonstrating the extended period of time the tenant spent out of the country.” Bailey asserted that “[t]enants can no longer bank on winning a landlord-tenant case because of the opportunity to receive a jury trial. New York juries are smarter and more thoughtful and less pro-rent regulated tenant than when I first started doing jury trials.”

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