TOA Construction Co. v. Tsitsires

OPINION OF THE COURT Saxe, J. The laws of rent stabilization do not allow for the indefinite retention of the right to rent-stabilized premises by a tenant who does not actually reside in the premises and has no intent to return to reside there at any point in the future. This is no less true where, as here, the tenant’s inability to ever reside there is caused by his mental illness. An apartment used by the tenant solely as a mail drop and storage space and occupied, when it is occupied at all, only by the tenant’s companion, should not be treated as the tenant’s residence. Unless there is evidence at trial supporting a conclusion that the tenant will at some point be able to actually reside in the apartment, his absence should not be deemed excusable, and his abandonment of the premises as his residence should be acknowledged as such. The facts of this case were fully presented to the trial court, and that court’s findings were not disputed, challenged, or altered by Appellate Term. Indeed, Appellate Term explicitly declined to second-guess either the trial court’s assessment of credibility or its conclusion that respondent’s mental illness prevented him from actively using the apartment. Although it reversed the trial court’s holding, the reversal was based only upon the application of the law to the facts found by the trial court. Yet, our dissenting colleagues would make an entirely new set of findings, based upon their own assessment of the evidence, after rejecting consideration of certain materials upon — 111 — which they say the trial court improperly relied. Further, the dissent would rely upon materials entirely outside the record, including assertions contained in recent newspaper articles. We reject the implicit suggestion that we adopt the dissent’s alternative assessment of the evidence instead of the trial court’s assessment. Rather, we rely upon the previously undisturbed findings of the trial court, especially its rejection of respondent’s testimony that he resided in the unit for extended periods of time during the Golub period (see Golub v Frank, 65 NY2d 900 [1985]). The sad facts of this case, as found by the trial court, naturally incline one’s sympathies toward respondent tenant, who suffers from debilitating mental illness that has propelled him into the life of a homeless person, despite his rights as a tenant in petitioner’s deteriorating single-room occupancy (SRO) building. However, the tone employed by the dissent, accusing this Court of “facilitating a notorious slumlord’s 20-year effort to empty its building of all tenants by evicting respondent tenant from his rent-stabilized apartment,” is misguided. It is the responsibility of this Court to dispassionately apply the law to the facts as found, notwithstanding the well-intentioned impulse to protect the interests of a mentally ill individual or the desire to rule against the interests of a party characterized by newspapers as a “slumlord.” It is incumbent upon us to correctly frame the rules of law that apply in this primary residence litigation. When the law is accurately stated, and applied neutrally to the facts as found by the trial court, it becomes clear that the findings of fact and conclusions of law of the trial court should have been upheld. We therefore reverse the order of Appellate Term, which, contrary to the ruling of the trial court, held that the tenant’s extended absence from the subject premises was excusable and that he had not abandoned the tenancy. This holdover proceeding to terminate respondent’s tenancy, on the ground that the apartment was not his primary residence, was commenced on December 7, 2000, following the landlord’s service on July 14, 2000 of a Golub notice of expiration of respondent’s tenancy as of November 30, 2000. Respondent has been a rent-stabilized tenant in the SRO since 1970. Over the years, the building fell into a state of chronic disrepair, and the trial court found the apartment to be uninhabitable when it inspected the premises on April 27, 2005. But, this litigation does not turn on the habitability of the apart — 112 — ment, or even on the nefariousness of the landlord; it simply concerns whether petitioner established that respondent did not maintain his primary residence there during the Golub period, December 1, 1998 through November 30, 2000. Although his exact diagnosis was disputed, it is established that respondent suffers from a mental illness, which includes a panic disorder, that has resulted in his feeling compelled to spend virtually all his time away from the subject apartment. The credible evidence established that respondent lived the lifestyle of a homeless person in a psychologically “safe” area within a 20-block radius of the building. He kept his personal possessions in the apartment, and his mail was delivered there, but notwithstanding his testimony to the contrary, which the trial court rejected as incredible, he rarely went there. He did not even maintain possession of the key, having given it into the custody of his girlfriend of 35 years, who used the apartment somewhat more frequently, as a place to shower and for storage of her personal possessions. The testimony that the trial court found to be credible, which Appellate Term left undisturbed, reflected that during the relevant period respondent stopped in at the apartment a handful of times but cannot be said to have resided there. To begin the necessary analysis, we must first consider the landlord’s initial burden in this unusual situation. The Rent Stabilization Code permits a landlord to recover possession of a rent-stabilized apartment that “is not occupied by the tenant ... as his or her primary residence” (9 NYCRR 2524.4 [c]). Respondent suggests that to do so the landlord has the legal obligation to establish not only that the tenant does not reside in the subject apartment but also that the tenant has an alternative primary residence. In this regard, respondent relies upon this Court’s holding that “[i]n a nonprimary residence case, the burden is on the landlord to establish that the tenant maintains a primary residence in a place other than the subject premises” (Sharp v Melendez, 139 AD2d 262, 264 [1988]). Respondent also emphasizes the word “primary” in the phrase “primary residence,” arguing that the concept implicitly requires the existence of a second residence, rendering one residence primary and the other secondary, and that the concept of primary residence is therefore, by definition, inapplicable when the tenant concededly has no other residence. Where there is only one residence, respondent contends, that residence is necessarily the tenant’s primary residence. — 113 — We conclude, however, that the dissenting justice at Appellate Term in this case is correct: The statement made in Sharp v Melendez imposing on the landlord the burden of establishing that the tenant maintains a primary residence in a place other than the subject premises is simply inapplicable to circumstances such as these. Importantly, Sharp v Melendez and similar cases involved situations in which the basis of the landlord’s claim was that the tenant resided in different premises than the one at issue. But, as the trial court here explained, establishing that the tenant has an alternative primary residence is merely one way for the landlord to meet its evidentiary burden; it is not the only way. The essence of the nonprimary residence claim is that the tenant lacks an “ongoing, substantial, physical nexus with the controlled premises for actual living purposes” (Emay Props. Corp. v Norton, 136 Misc 2d 127, 129 [App Term, 1st Dept 1987]). The terms of the Rent Stabilization Code do not require proof that the tenant maintains an alternative primary residence (see 9 NYCRR 2524.4 [c]). A prima facie showing of non-primary residence could be successfully made simply by proof that a rent-paying tenant was absent from the apartment and kept no belongings there during the relevant period, without the introduction of any information about where the tenant had gone. The majority at Appellate Term, without rejecting the finding that respondent did not actually live in the apartment, held that his absence must be deemed excusable for purposes of non-primary residence analysis because the record showed that “there was no abandonment of the premises or establishing of any new residence” (14 Misc 3d 65, 67 [2006], quoting Katz v Gelman, 177 Misc 2d 83, 84 [App Term, 1st Dept 1998]). But, the facts here are not comparable to those in Katz v Gelman or other cases in which tenants established that their extended absences from their apartments were excusable (see e.g. Coronet Props. Co. v Brychova, 122 Misc 2d 212 [1983], affd 126 Misc 2d 946 [App Term, 1st Dept 1984]). In Brychova the tenant demonstrated that she had to be away from home due to the exigencies of her profession. In Katz, the tenant was absent because of his health. Importantly, in each instance it was established that the tenant fully intended to return to and reside in the apartment as soon as practicable. In Brychova, the tenant was an itinerant professional soprano and voice teacher who spent all but a handful of days each year away from home at professional — 114 — engagements. In Katz the tenant was absent from his leased premises while he was institutionalized in various transitional residential facilities for treatment of depression and substance abuse, with the intent of preparing to return to independent living. While, as in Katz (177 Misc 2d at 84), it is clearly a mental health problem that causes respondent to be absent from the subject premises, unlike the situation in Katz, there is no credible evidence indicating that respondent will ever return to and reside in the subject premises, or even that he has any intent to do so. Indeed, there is no reason to conclude, based upon the credible evidence in the record, that respondent can be cured of his need or compulsion to stay out of the subject premises. Regardless of how understandable is his decision to decline any offered medication or treatment, nothing in the record supports a conclusion that respondent had any true intent or ability to achieve a cure for his illness that would allow him to take up real residence in the apartment. Since there is no credible basis in the record to conclude that respondent might in the future be willing or able to resume actual residence in the apartment, the logic of Katz v Gelman has no application to this case. The dissent, while agreeing with the conclusion of Appellate Term that respondent’s absence is excusable and that he did not abandon the premises, also emphasizes testimony rejected by the trial court to the effect that respondent actually resided in the apartment during the period in question. While paying lip service to the rule that the trial court’s findings of fact should not be disturbed unless they could not be reached under any fair interpretation of the evidence, the dissent essentially relies on the testimony of respondent and his companion to find, contrary to the trial court’s finding, that respondent intends to reside in the premises in the future, and, indeed, that he has resided there since at least 2001. The dissent even cites the testimony that the trial court squarely rejected, in which both respondent and his companion stated that during the Golub period respondent was present in the apartment every day. However, we decline to make new findings of fact upon our own review of the record, despite our authority to do so. There are important reasons for the deference with which we generally approach the findings of a trial court, particularly regarding credibility. A decision by a trial court adds up to more than the sum of its parts; it takes into account the judge’s firsthand impressions, as well as the judge’s experience with similar cases, particularly in specialized courts such as the Housing Court. — 115 — The trial court’s finding regarding respondent’s credibility should stand; by the same token, we should defer to the court’s rejection of respondent’s and his companion’s testimony as to their continued presence in the apartment during the Golub period. Reliance on respondent’s telephone bills to buttress the conclusion that respondent did not abandon the apartment is misplaced. It is already established that respondent’s companion frequently uses the apartment and that respondent keeps personal possessions there and uses it as a mail drop. None of these facts establish his intent to return to live there, and neither do his telephone bills. The manner in which respondent uses the subject premises, as a storage facility and mail drop, should be recognized, and treated, as tantamount to an abandonment of the premises for residential purposes. The dissent’s citation to recent newspaper articles to support its assertion of facts regarding respondent’s recent residence at the premises should not be countenanced. When we review an order on appeal, we do so on the evidence presented in the record on appeal, not on purported facts gleaned from newspaper articles. Indeed, in this matter the relevant time period of residency was December 1, 1998 through November 30, 2000. To the extent the respondent’s future intent to reside in the premises was relevant, such intent had to be established before the trial court, not in assertions extraneous to the record and not even introduced by the parties. Furthermore, judicial notice of facts is reserved for “matter[s] of common and general knowledge, well-established and authoritatively settled” (Prince, Richardson on Evidence § 2-201 [Farrell 11th ed] [internal quotations marks and citations omitted]). Judicial notice of a fact such as a tenant’s residency in a building may not properly be based upon a factual assertion simply because the assertion is contained in a newspaper article. The evidence contained in the record that was accepted as credible by the trial court shows that respondent did not reside in the apartment during the Golub period, that he did not intend to return to reside there, and that there is no reason to believe he will be able to reside there in the future. However sympathetic respondent’s plight, the concept of rent-stabilized tenancy is warped beyond recognition if a tenant who is permanently absent from the apartment, using it only as showering facilities for his companion and as storage space and mail drop for himself, without any indication that he will ever be able to reside there again, may nevertheless be entitled to be treated as a rent-stabilized tenant who has not abandoned the apartment. — 116 — It should be noted that when we conclude that a tenant who does not reside in his apartment may not properly be said to be using it as his primary residence, we are not “finding” that the tenant’s primary residence is a park bench. I think we all agree that a person cannot maintain a primary residence on a park bench. But, the question for the court is solely whether the tenant has maintained an “ongoing, substantial, physical nexus with the controlled premises for actual living purposes” (see Emay Props. Corp. v Norton, 136 Misc 2d 127, 129 [1987], supra) or whether, instead, he has abandoned the premises that served at some earlier time as his residence. The answer is, during the relevant period respondent did not maintain the required substantial physical nexus with the premises for actual living purposes, and he had no expectation of doing so. Having determined that respondent failed to counter petitioner’s showing with his own credible evidence demonstrating either that during the Golub period he used the premises as his primary residence or that his absence is excusable, we may not allow respondent to claim the rights of primary residency based solely upon the use of the apartment by his longtime companion. This is not because we find that she is some sort of “transient girlfriend,” as the dissent implies, but because the record does not establish tenancy rights on her part, despite her longtime relationship with respondent. As the dissent acknowledges, this proceeding did not raise or address any claim to succession rights or any other rights invested directly in respondent’s companion. I recognize that part of the impetus for the dissent’s view is that the landlord here allowed the premises to become uninhabitable with the intent of emptying the SRO building of all tenants. Yet, the landlord’s conduct and intentions, whatever we think of them, had no impact on respondent’s virtual abandonment of the apartment as his residence. Had respondent successfully demonstrated that his absence from the apartment was due to its uninhabitable condition, and that he would return and reside there if it were made habitable, the landlord’s conduct would have been relevant to the question whether respondent’s absence from the premises should be considered “excusable” for purposes of primary residence analysis. But, the evidence established that respondent’s absence from the premises was due to his mental illness, not the condition of the apartment. Additionally, the fact that respondent applied for public housing that would accommodate his disability, stating on the ap — 117 — plication that he was homeless, but failed to take the necessary action to accept the ultimate offer of an apartment within his “safe area” of the city lends further credence to the conclusion that his mental illness was the substantial impediment to his maintaining his residence in the subject apartment, or any apartment. Had he been motivated by the need for a clean and habitable apartment, rather than impelled by his mental illness, he would have done what was necessary to take the offered apartment. The dissent correctly observes that the goal of the rent stabilization framework, “to alleviate the shortage of housing in New York City by returning underutilized apartments to the market place” (Matter of Herzog v Joy, 74 AD2d 372, 374 [1980], affd 53 NY2d 821 [1981]), is not served by permitting the ouster of this tenant, since the landlord’s interest is in emptying the building of all tenants, rather than in replacing this tenant with a tenant who will actually reside there. Nevertheless, application of the primary residence rules is not limited to those landlords who can establish that they are acting in good faith to return underutilized housing to the market. Whether the tenant maintains an “ongoing, substantial, physical nexus with the controlled premises for actual living purposes” (Emay Props. Corp. v Norton, 136 Misc 2d at 129) depends upon the tenant’s conduct in relation to the property, not the landlord’s intended future use of the building. The questions the Court must answer are: (1) did the petitioner establish that the tenant lacked an “ongoing, substantial, physical nexus with the controlled premises for actual living purposes,” and (2) if so, did the tenant establish an intent to resume living in the premises when it became possible? Here, petitioner made the requisite showing, and respondent failed to establish an intent to return so as to overcome the prima facie showing. On the evidence before it, the trial court correctly determined that the apartment was not being used as respondent’s primary residence and would not be so used in the future. We conclude that petitioner’s claim is established, based upon the facts as found by the trial court, that respondent does not, and will not in the future, use the subject premises “for actual living purposes,” and that therefore it is not his residence. Accordingly, the order of the Appellate Term of the Supreme Court of the State of New York, First Department, entered December 21, 2006, which reversed a final judgment of the Civil — 118 — Court, New York County (Gerald Lebovits, J.), entered July 7, 2005, awarding possession after nonjury trial to petitioner landlord in a nonprimary residence proceeding, and awarded final judgment to respondent tenant dismissing the petition, should be reversed, on the law, without costs, and the judgment of possession awarded in favor of petitioner landlord reinstated.