DECISION/ORDER This nonprimary residence holdover proceeding was tried before me on June 5, June 12, and July 2, 2018. Post-trial memos were submitted on July 31, 2018. Petitioner contends that respondent’s primary residence is in Staten Island, at a home owned by her mother. Respondent asserts that she is often away from the subject apartment for significant periods in connection with her work as a home health aide, and that she regularly visits her elderly mother, but that the subject apartment is her primary residence.Petitioner’s case rests almost exclusively on documentary evidence. Respondent’s tax returns, bank statements, credit card statements, and work-related invoices all bear her mother’s Staten Island address. The only exception is the 2015 tax returns, filed after this case was commenced in 2016. Petitioner also relies on the location of debit and credit card transactions and EZ Pass records. Petitioner’s only witness was Jose Salazar, the building superintendent, called as a rebuttal witness. Mr. Salazar became the superintendent only three or four months before service of the Golub notice in this case. His testimony was vague and general, that I did not find it credible.Respondent testified at length and in detail about her job assignments between May 2014 and May 2016, and about where she slept at night and how she traveled to and from work during this period. She also testified that her mailbox at the subject premises had been broken and “hanging off the wall” for the entire period of her occupancy. Because the mailbox was not secure, she did not change the address on her important documents from her mother’s home, where she lived before she rented the subject apartment, to her new address. Respondent also testified that her mother’s accountant on Staten Island prepared her tax returns in addition to her mother’s and used the same address for both returns. Respondent acknowledged that a dog she adopted in 2011 had lived with her mother since the adoption. Respondent testified that she could not keep the dog at her apartment because her long and irregular hours. She said that the dog had become her mother’s dog, although she continued to pay for its food and other expenses.Respondent testified that she did not own a car of her own until January 2016. Before that she borrowed either her mother’s car or her sister’s when she needed to drive. The two EZ Pass accounts she sometimes used were both her mother’s and were used by her mother and her sister in addition to herself. She continued to use her mother’s EZ Pass account even after she purchased her own car. She registered the car in Staten Island at her mother’s home so that it could be insured under her mother’s policy.From May 2014 to August 2014, respondent testified that she worked three days a week from 1:00 p.m. to 8:00 p.m. at a home care job on Staten Island. From May to mid-July, respondent’s mother’s EZ Pass records show that someone drove over the Verrazano Bridge to Staten Island several days a week at a time appropriate for respondent to be heading to her job. In these months respondent had some credit and debit transactions in Manhattan and some in Staten Island. The trips do not continue regularly in August, and all the transactions in August appear to be in Staten Island.From September 2014 until November 2014 respondent had a full time live-in job on Staten Island. There are no transactions in September and October 2014 and all the November transactions are in Staten Island. From December 2014 to February 2015 respondent was unemployed. The only New York transactions during this period are on occasional weekends. From March to May 2015 respondent worked a 9:00 a.m. to 5:00 p.m. job in Staten Island. She testified that she commuted on the Staten Island Ferry during this period. This would be consistent with the documentary evidence except that it appears that she may have been driving over the Verrazano Bridge at a time when she would have been heading for work at this job for a few weeks in April 2015.From May 2015 to July 2015 respondent was again unemployed. She had more than the usual number of Manhattan transactions during this period. From August to October 2015 respondent worked full time at a live-in job in Monticello, New York. There are no transactions in Staten Island or in Manhattan during this period, until mid-October, when there are Manhattan transactions. From October to December 2015 she also worker a live in full time job, in Staten Island. There are very few transactions in this period. In January and February 2016 respondent worked 12 hour shifts from 6:30 a.m. to 6:30 p.m. five days a week on Staten Island. She testified that she stayed with her mother on Staten Island during the week and returned to Manhattan on the weekends during this period. She had purchased her own car in January 2016, and the car remained in Staten Island.From February 2016 to May 2016, and continuing after that, respondent worked 6:30 p.m. to 6:30 a.m. at a home care job in Brooklyn. She testified that she had trouble parking her car in Manhattan, so she stopped driving there. EZ Pass records show regular trips to Staten Island from Brooklyn on the Verrazano Bridge at about the time respondent got off work during this period. There are also Manhattan transactions during this period, suggesting that respondent left the car in Staten Island and returned to Manhattan on the ferry.Primary residence requires a substantial ongoing physical nexus with the regulated premises for actual living purposes. Sommer v. Anne Turkel Inc. 137 Misc. 2d 7 (AT 1st Dept. 1989). Petitioner bears the burden of proving that the apartment is not the respondent’s primary residence. Glenbriar Co. v. Lipsman, 5 NY 3d 388 (2005). While documentary evidence is certainly important in nonprimary residence cases, a court may find that primary residence has been established by credible testimony alone. 300 East 34th Street Co. v. Habeeb, 248 AD 2d 50 (AT 1st Dept. 1997). Tax returns and voter registrations at another address are a factor to be considered but are not dispositive. 47 HK Realty LLC v. O’Leary, 55 Misc. 3d 129 (A) (AT 1st Dept. 2017), 92 Cooper Assoc. LLC v. Roughton-Hester, 57 Misc. 3d 156 (A) (AT 1st Dept. 2017). Time spent away from the subject apartment because of a work assignment does not interrupt a tenant’s primary residence. 9 NYCRR Section 2523.5 (b) (2) (iv). See, e.g., 92 Allen LLC v. Kei Nui Lee, 48 Misc. 3d 1221 (A) (Civ. Ct. NY Co. 2015).Respondent testified credibly at the trial that she had gone to live in Staten Island at her mother’s home following the sudden and tragic death of her young son. She rented the subject apartment in 2011 because, she said, she was ready, once again, to live on her own. Sharing a kitchen and bathroom with her mother full time had become a strain. She was working in Manhattan at the time, and the family of a patient owned the subject building and offered her the apartment. Her testimony about how she furnished the apartment, and about her activities in the neighborhood and connections to the community was detailed and persuasive.During the relevant two-year period, some of respondent’s jobs required her to live in, significantly limiting the time she could spend in the apartment. Most of her jobs were in Staten Island, so it is no surprise that she did most of her shopping there. Nor does it constitute an abandonment of her primary residence that she stayed with her mother when bad weather or a very late shift made traveling home difficult. Time spent with her mother, who was recovering from a recent stroke, is, in any case, a reasonable ground for absence from the apartment. 9 NYCRR Section 2523.5 (b) (2) (vi), 542 East 14th Street LLC v. Lee, 66 AD 3d 18) (1st Dept. 2009), Hudsoncliff Bldg Co. v. Houpouridou, 22 Misc. 3d 52 (AT 1st Dept. 2009).Based primarily upon the credible testimony of Denise O’Donnell, I find that the subject apartment is her primary residence. Ms. O’Donnell adequately explained the documentary evidence that tied her to her mother’s house on Staten Island. Given that she visited her mother regularly and that most of her work assignments were on Staten Island, her credit and debit transactions do not establish that she lived there. Her occasionally long absences from the subject apartment are explained by the nature and location of her work assignments as a home health aide.For all the foregoing reasons, the proceeding is dismissed on the merits.Dated: 12/31/18
