Dexter 345 Inc. v. Cruz

  Dexter 345 Inc., the petitioner in this proceeding (“Petitioner”), commenced this holdover proceeding against Hector Cruz (“Respondent”), a respondent in this proceeding, and Maricela Cruz (“Co-Respondent”), another respondent in this proceeding (collectively, “Respondents”), seeking possession of 345 West 86th Street, Unit 1215, New York, New York (“the subject premises”) on the ground that Respondents are rent-stabilized tenants of the subject premises and that Respondents do not maintain the subject premises as their primary residence. Respondents interposed an answer with a general denial. The Court held a trial of this matter against Respondents on April 29, 2019, July 31, 2019, and September 25, 2019. The trial Petitioner proved that it is the proper party to commence this proceeding; that Respondents are tenants of record of the subject premises, protected by the hotel provisions of the Rent Stabilization Code; that Petitioner has complied with the registration requirements of 9 N.Y.C.R.R. §2528.3 and MDL §325; and that Petitioner timely and properly effectuated service of a predicate notice on Respondents prior to the commencement of this proceeding purporting to terminate Respondents’ tenancies as of July 15, 2016. Petitioner introduced into evidence a deed for a house in the Bronx (“the other address”) dated January 13, 2016 showing that Respondents are the grantees and that the subject premises is Respondents’ address. Petitioner introduced into evidence a mortgage for the other address, paragraph 7(a) of which states that whether Respondent lives in the other address or not, that Respondent shall keep the other address in good repair and an application for a mortgage for the other address, which states that the other address will be Respondent’s primary residence. Petitioner’s building manager (“the building manager”) testified on direct examination that he has worked at the subject premises since May 2004; that his office is on the first floor of the building in which the subject premises is located (“the Building”); that he works there from 9 a.m. to 4 p.m. from Mondays to Fridays and every other Saturday from 9 a.m. to 1 p.m.; that tenants enter the Building from the front door; that he is at the front desk almost every day; that he met Respondent when he first started working at the Building in 2004 and knew Respondent throughout the whole time he’s been there; that Co-Respondent lived in the subject premises as well; that Co-Respondent had a baby in 2015 or 2016; that the dimensions of the subject premises are approximately twelve feet by twelve feet; that he contacted Respondent with an allegation of overcrowding; that he received a letter from an assemblymember accusing Petitioner of harassment and also stating that the problem would soon be solved because Respondents had purchased a house in the Bronx;¹ that he observed Respondent and Co-Respondent intermittently moving out of the subject premises in February of 2016 or April of 2016 by moving boxes and suitcases; that Respondent is a doorman at a building three buildings away from the Building (“Respondent’s workplace”); that, before January of 2016, he saw that Respondent worked some days of the week and not others; that he continued to see Respondent on Respondent’s work days after January of 2016; more specifically that, after January of 2016 he saw Respondent enter the Building wearing clothes other than a doorman’s uniform, then go upstairs to the subject premises for about 45 minutes or an hour and come back downstairs to the lobby of the Building wearing his doorman uniform; that he would not see Respondent after that until the following day; that he didn’t see Co-Respondent after February of 2016; and that there is a subtenant in the subject premises. The building manager testified on cross-examination that there are 265 units in the Building; that about 95 to 96 percent of them are occupied; that he doesn’t work evenings; and that his testimony of the presence of occupants in the subject premises was not based on his observation of the subject premises, just the front desk. The front desk doorman at the Building (“the doorman”) testified that he has been working since 2004; that he has always worked from 8 a.m. to 4 p.m. from Monday to Friday and every other Saturday; that he’s at front desk all the time; that he doesn’t go out for lunch; that he’s known Respondent since 2004; that Respondent and Co-Respondent are married; that he stopped seeing Co-Respondent around January or February of 2016; that he saw Respondent once or twice a week leaving but not staying; that Respondent wore regular street clothes when he entered the Building with a duffel bag and a uniform in hand, which would be around 2:45 p.m. or 3 p.m.; that Respondent would leave around 3:45 p.m. wearing a doorman uniform; that Respondent works three buildings down from the Building; and that he’s never been inside the subject premises. The doorman testified on cross-examination that he doesn’t really work evenings and that he reports to the building manager, who was in the Courtroom during his testimony. A former front desk clerk (“the desk clerk”) testified that he worked at the Building from 2010 to 2018 on Sundays and every other Saturdays from 8 a.m. to 4 p.m. and then from Mondays to Thursdays from 4 p.m. to 12 midnight; that he knows Respondents and used to see them in the Building every day; that he stopped seeing Respondent in the Building two to three years ago, around maybe 2016; and that in this time frame he saw Respondent every now and then, for an hour or two, starting around 2017. The desk clerk testified on cross-examination that his hours never extended beyond midnight. Another employee of Petitioner (“Petitioner’s employee”) testified that he has been working at the Building on Fridays through Sundays from 4 p.m. to midnight for the past four years; that he knows Respondent; that he barely knows Co-Respondent; that Respondent would come in to the Building from time to time to pick up mail wearing a doorman uniform; that he didn’t see Respondent at all from around February of 2016 until April of 2016; and that after April of 2016, he saw Respondent come in alone at particular days of the week at specific times in his doorman uniform, pick up mail, and then leave after an hour. Petitioner’s employee testified on cross-examination that he works a sixteen-hour shift on weekends, and that the building manager, who in the Courtroom at the time, is Petitioner’s employee’s boss. Petitioner introduced into evidence property tax bills for the other address dated February 19, 2016, June 3, 2016, and August 26, 2016 mailed to the subject premises. Respondent introduced into evidence Respondent’s driver’s license issued May 25, 2011 using the subject premises as his address, a vehicle registration for Respondent using the subject premises as his address dated June 27, 2016, credit card statements mailed to Respondent at the subject premises from April through September of 2016, retirement plan statements mailed to Respondent at the subject premises dated July 15, 2016 and September 30, 2016, a health insurance document mailed to Respondent at the subject premises on May 23, 2016, Respondent’s paystubs with the subject premises on them dated July 11, 2016 and July 18, 2016, and a car insurance document mailed to Respondent on April 14, 2016.² The credit card statements showed that credit card activity in the Bronx on March 5, 17, 18, 23, 24, and 25 of 2016, April 1, 20, 27, and 29 of 2016, May 4, 5, 8, and 26 of 2016, June 1, 23, and 29 of 2016, July 7 and 28 of 2016, and August 5, 24, and 25 of 2016. They also show credit card activity in Manhattan on March 7, 12, 18, 19, 22, 27, 29, and 30 of 2016, April 3, 5, 6, 9, 11, 19, 23, 25, and 30 of 2016, May 2, 4, 7, 14, 17, 21, 24, 30, and 31 of 2016, June 4, 7, 11, 14, 18, 19, 21, 25, 27, and 28 of 2016, July 1, 5, 9, 10, 16, 18, 19, 20, 23, 26, and 30 of 2016, and August 2, 4, 6, 9, 11, 13, 14, 15, 16, 20, 24, 26, and 27 of 2016. Respondent testified that he has been living at the subject premises for twenty-five years; that his daughter and Co-Respondent, who is his wife, had lived with him in the past; that Co- Respondent moved to the other address in 2016 after he bought the other address, which he purchased for Co-Respondent; that the subject premises does not have its own bathroom, but that there is a bathroom in the common area; that the subject premises has a bed and a sofa bed; that he is a doorman at Respondent’s workplace, three doors down from the Building; that he goes to the other address on Wednesdays and Thursdays; that the other address is a single-family three-bedroom house; that Co-Respondent, his two daughters, and his brother-in- law live in the other address and have done so since he bought the other address in 2016; that he stays in the subject premises because it is near Respondent’s workplace; that the commute from the other address to Respondent’s workplace is four hours; that he drives; that he owns two cars; that he has to wear a uniform to Respondent’s workplace; and that he keeps his uniform in the subject premises. Respondent testified on cross-examination that he pays the mortgage for the other address; that he had to get his family out of the subject premises; that a neighbor of his at the other address was complaining about the fact that minor children had been living in the subject premises;³ and that he had a roommate (“the roommate”) for four months who was a woman who also worked at Respondent’s workplace. Petitioner’s counsel read into the record Respondent’s deposition testimony that the roommate lived in the subject premises from January of 2016 through January of 2017. Respondent testified on redirect examination that, at the time he bought the other address, he understood that he would have to live at the other address for some period of time; that that meant to him that he had to live in the other address on his two free days from work; that he works on Fridays from 3 p.m. to 12 midnight; that he works on Saturdays from 12 noon to 12 midnight; that he works Sundays from 4 p.m. to 12 midnight; that he works Tuesdays from 4 p.m. to 12 midnight; and that he goes to the subject premises on breaks. Co-Respondent testified that she used to live at the subject premises; that she has lived at the other address since September of 2016; that Respondent is her husband; that she lives in the other address with her mother, her brother and her two daughters; that the other address is a one-family house with a basement, a living room, a kitchen, a dining room, three bedrooms, and a bathroom; that Respondent lives at the subject premises; and that Respondent comes to the other address two days a week. Co-Respondent testified on cross-examination that Respondent pays the mortgage for the other address; that her mother sleeps in one bedroom at the other address; that her brother sleeps in another bedroom there; that she and daughters sleep in another bedroom there; that Respondent stays overnight at the other address when he comes there; that Respondent sleeps in the basement of the other address, which Co-Respondent characterized as his “apartment,” where there is a bed and a bathroom; that she and Respondent are not separated; that she knows the roommate, who needed a place to stay after an elderly woman the roommate had been taking care of died; that she doesn’t know what period of time the roommate stayed in the subject premises; and that the roommate and Respondent stayed in a single room together five nights a week. The building manager testified on rebuttal that the roommate lived by herself and that the roommate moved to the subject premises in May of 2016. Discussion The record contains substantial indicia that Respondent maintains the subject premises as his primary residence, such as his driver’s license, Glenbriar Co. v. Lipsman, 5 NY3d 388, 392-393 (2005), 300 East 34th St. Co. v. Habeeb, 248 AD2d 50, 55 (1st Dept. 1997), Columbus Manor, LLC v. Turnbull, 63 Misc 3d 143(A)(App. Term 1st Dept. 2019), 317 Magnone LLC v. Gumina, 55 Misc 3d 142(A)(App. Term 1st Dept. 2017), his paystubs and credit card statements, Cox v. J.D. Realty Assocs., 217 AD2d 179, 184 (1st Dept. 1995), Brg 321 LLC v. Hirschorn, 52 Misc 3d 131(A)(App. Term 1st Dept. 2016), RSP 86 Prop. LLC v. Sylvester, 47 Misc 3d 137(A)(App. Term 1st Dept. 2015), his health insurance documents, 300 East 34th St. Co., supra, 248 AD2d at 55, Lesser v. Park 65 Realty Corp., 140 AD2d 169, 174 (1st Dept. 1988), Brg 321 LLC, supra, 52 Misc 3d at 131(A), RSP 86 Prop. LLC, supra, 47 Misc 3d at 137(A), his retirement plan statements, 542 E. 14th St. LLC v. Lee, 66 AD3d 18, 22-23 (1st Dept. 2009), 710 Madison Ave. LLC v. Hicks, 56 Misc 3d 131(A)(App. Term 1st Dept. 2017), 422 E. 9th LLC v. Patton, 29 Misc 3d 137(A)(App. Term 1st Dept. 2010), King Enters., Ltd. v. Glazer, 27 Misc 3d 127(A)(App. Term 1st Dept. 2010), Lance Realty Co. v. Fefferma, 5 Misc 3d 134(A)(App. Term 1st Dept. 2004), his vehicle registration, Columbus Manor, LLC, supra, 63 Misc 3d 143(A), Johnson v. Smith, 53 Misc 3d 144(A)(App. Term 2nd Dept. 2016), and his car insurance. Id. Respondent’s ownership of a single-family house in the Bronx obviously counters the body of evidence placing him at the subject premises. Additionally, the mortgage application (although not the mortgage itself) stated that Respondent had to maintain the other address as his primary residence. A nonprimary residence analysis is a fact-intensive inquiry entailing a variety of factors, Katz Park Ave. Corp. v. Jagger, 11 NY3d 314, 317 (2008), and no single factor shall be solely determinative. Id., 92 Cooper Assoc., LLC v. Roughton-Hester, 165 AD3d 416, 417 (1st Dept. 2018). Ownership of real property aside from the regulated premises, in particular, is not dispositive. See, e.g., 310 E. 23rd LLC v. Colvin, 41 AD3d 149, 149-150 (1st Dept. 2007)(a house a tenant owns in Upstate New York used as a home address in certain tax-related documents is a merely the tenant’s second residence that the tenant only used on weekends, holidays and vacations, not her primary residence); Four Winds Assocs. v. Rachlin, 248 AD2d 352, 353 (2nd Dept. 1998)(a tenant who owns a condominium in Florida, registered her automobile there, and had a restricted Florida driver’s license still maintained her primary residence at her rent-stabilized apartment in New York City when she voted in New York, paid New York income taxes, possessed a New York State driver’s license, received ongoing care from medical professionals in New York, and kept her clothing in the New York apartment); RSP 86 Prop. LLC, supra, 47 Misc 3d at 137(A); Ninth Ave. Realty LLC v. McKay, 29 Misc 3d 136(A)(App. Term 1st Dept. 2010)(the ownership and weekend and vacation use of a house in Orange County, New York does not mean that rent-stabilized tenants are not using their rent-stabilized apartment as their primary residence when their rent-stabilized apartment is fully-furnished and they spend well in excess of one hundred eighty-three days at the rent-stabilized apartment, and where they maintain full-time jobs in Manhattan); ST Owner LP v. Ward, 21 Misc 3d 133(A)(App. Term 1st Dept. 2008)(even when a rent-stabilized tenant owned a house in New Jersey and registered her car there, the rent-stabilized premises in New York was still her primary residence when she only used the New Jersey house on the weekends). Nor is a provision in a mortgage requiring a tenant to live in a property the tenant owns dispositive, Corona Apartments v. Benitez, 1 Misc 3d 79, 80 (App. Term 2nd Dept. 2003), although these facts are probative of primary residence as well. E. Hattan Realty Corp. v. Antonio, 25 Misc 3d 135(A) (App. Term 1st Dept. 2009). When faced with contrasting evidence as evinced here, the Court finds particularly probative proof of the location that a tenant regularly physically occupies. See, e.g., Vill. Dev. Assocs., LLC v. Walker, 282 AD2d 369 (1st Dept. 2001), 370 Columbus Realty LLC v. Liew, 38 Misc 3d 135(A)(App. Term 1st Dept. 2013), Ninth Ave. Realty LLC, supra, 29 Misc 3d at 136(A), Extell 609 W. 137th St. LLC v. Bonilla-Morel, 35 Misc 3d 138(A)(App. Term 1st Dept. 2012), Surrey Hotel Assocs., LLC v. Talukder, 11 Misc 3d 133(A)(App. Term 1st Dept. 2006) (sleeping every night in an apartment demonstrates that it is the tenant’s primary residence despite the fact that some documents, such as joint tax returns and credit statements, use a different address). No party disputed that Respondents works as a doorman at Respondent’s workplace, which is on the same block at the subject premises. The testimony of Petitioner’s witnesses, the doorman in particular, that he regularly sees Respondent at the subject premises in the afternoon is consistent with Respondent’s testimony that his shift at Respondent’s workplace normally starts in the middle of the day. Petitioner’s witnesses’ testimony that Respondent starts work in the afternoon is consistent with Respondent’s testimony that his work shift lasts until midnight. Petitioner did not have any witness who worked after midnight who might have otherwise rebutted Respondent’s testimony that he returns to the subject premises after his shift ends at midnight. The Court also finds that common sense dictates that Respondent would sleep at the subject premises, three doors down from Respondent’s workplace after his work shift ended at midnight, rather than trek to the other address in the Bronx. Moreover, records of credit card activity and bank activity (like, for example, withdrawals from ATMs) can provide persuasive evidence showing where someone actually physically spends their time for purposes of determining primary residence. See, e.g., 409-411 Sixth St., LLC v. Mogi, 100 AD3d 112, 118-119 (1st Dept. 2012)(the trial Court found that a tenant did not maintain her apartment as her primary residence in large part on reliance on credit card and bank activity),⁴ 155 West Assoc. v. Dapper, 2009 NY Misc. LEXIS 5293 (Civ. Ct. NY Co. 2009)(credit card activity is probative to a tenant’s primary residence). Between March and July of 2016, the credit card statements in evidence showed eighteen instances of credit card activity in the Bronx and forty instances of credit card activity in Manhattan. This evidence further corroborates Respondent’s testimony that he spends two days a week in the Bronx and five days a week in Manhattan. Co-Respondent’s residence at the other address, while probative, also does not determine the matter, as spouses may have two separate primary residences. Glenbriar Co., supra, 11 AD3d at 353-354, Rose Associates v. State Div. of Housing & Community Renewal, Office of Rent Admin., 121 AD2d 185, 187 (1st Dept. 1986), 60 W. 57 Realty, Inc. v. Durante, 17 Misc 3d 71, 72 (App. Term 1st Dept. 2007). In determining Respondent’s primary residence, the Court finds useful a thought experiment: what if Respondent was accused of failing to maintain the other address as his primary residence? One could imagine an argument that Respondent’s mere title to the other address alone could not prove primary residency there when he uses the subject premises as a mailing address for all of his important documentation, where credit card activity places him closer to the subject premises, where employees at the subject premises regularly see him there, and, most crucially, when Respondent works on the same block as the subject premises until midnight a majority of his nights. Such a thought experiment is imperfect — it necessarily involves burden-shifting — but can be clarifying nonetheless. Accordingly, the balance of evidence adduced at trial shows that Respondent continues to maintain the subject premises as his primary residence. The Court therefore dismisses this proceeding as against Respondent with prejudice through July 15, 2016, the termination date on the predicate notice to this matter. There is no dispute, however that Co-Respondent does not maintain the subject premises as her primary residence. The Court awards Petitioner a final judgment against Co- Respondent only. The Court permits issuance of the warrant of eviction forthwith, with no stay on execution. However, the Court stresses that any warrant of eviction is only of use as against Co-Respondent and no other party, and certainly may not be used against Respondent. The parties are directed to pick up their exhibits within thirty days or they will either be sent to the parties or destroyed at the Court’s discretion in compliance with DRP-185. This constitutes the decision and order of this Court. Dated: October 15, 2019 New York, New York