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Dissenting Opinion

I respectfully dissent and vote to reverse, as the trial court's determination that this 40-year rent stabilized tenant of advanced years, with serious medical issues, "did not maintain a nexus to the apartment during the relevant period of inquiry prior to the expiration of [tenant's] last lease" is unsupported, "under any fair interpretation of evidence" (409-411 Sixth St., LLC v. Mogi, 22 NY3d 875, 876-877 [2013], quoting Claridge Gardens v. Menotti, 160 AD2d 544, 544-545 [1st Dept 1990]).

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I respectfully dissent and vote to reverse, as the trial court’s determination that this 40-year rent stabilized tenant of advanced years, with serious medical issues, “did not maintain a nexus to the apartment during the relevant period of inquiry prior to the expiration of [tenant's] last lease” is unsupported, “under any fair interpretation of evidence” (409-411 Sixth St., LLC v. Mogi, 22 NY3d 875, 876-877 [2013], quoting Claridge Gardens v. Menotti, 160 AD2d 544, 544-545 [1st Dept 1990]).

It is well settled that a tenant’s absence from a rent-stabilized premises for medical treatment constitutes a reasonable excuse for purposes of primary residence analysis and entitles the tenant to the safe harbor protection of Rent Stabilization Code (9 NYCRR) §2523.5(b)(2)(see Hudson St. Equities Group v. Escoffier, 11 Misc 3d 63, 64 [App Term, 1st Dept 2006], affd 45 AD3d 371 [1st Dept 2007]; Hudsoncliff Building Co. v. Houpouridou, 22 Misc 3d 52 [App Term, 1st Dept 2008] [reversal by this court determining that tenant had a sufficient nexus and did not abandon subject apartment, despite spending considerable time in Greece caring for her ailing mother, her brother's subsequent illness and her own accident]). Moreover, an absence may be deemed excusable, if the record shows that “there was no abandonment of the premises or establishing of any new residence” (Katz v. Gelman, 177 Misc 2d 83, 84 [App Term, 1st Dept 1998]). Nevertheless, “[t]he ultimate burden of persuasion remains on the landlord seeking eviction on the basis of nonprimary residence” (Patchin Place v. Fox, 3 Misc 3d 127[A][App Term, 1st Dept 2004]).

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