LLC v. CHARLES NASSIF RAISSA MENDOME MVOUME DAVID LYPKA JOHN DOE JANE DOE (2026)

Petitioner, Tiffany Properties LLC, commenced this non-primary holdover proceeding against Respondent-tenant, Adriana Dalpio and Respondent-undertenants, Charles Nassif, Raissa Mendome Mvoume, David Lypka seeking possession of 203 East 22nd Street, Apartment 3W, New York, NY 10003.

According to the Petition, the tenant of record, Adriana Dalpio does not maintain the subject rent stabilized apartment as her primary residence. The termination notice dated January 21, 2021, which is referenced in paragraph 5 of the Petition, indicates that Respondent - Adriana Dalpio's tenancy is being terminated effective April 30, 2021. The grounds for the failure to offer her a renew lease is a claim that she is not maintaining the subject premises as her primary residence and that she has relocated to 3040 N. Chuperosa Road, Palm Springs, California 92262. Moreover, that building personnel have not seen the Respondent-tenant at the subject premises in at least six months; that Raissa Mendome Mvoume and David Lypka reside in the subject premises; that Raissa Mendome Mvoume and David Lypka pay "$1250.00 a month" for the apartment and that they are also, "paying all the utilities for Apartment 3W."

Respondent-tenant, Adriana Dalpio and Respondent-undertenant, Charles Nassif appeared by counsel. There is no dispute that Respondents Adriana Dalpio and Charles Nassif, are husband and wife. Respondent-undertenants, Raissa Mendome Mvoume, David Lypka, appeared pro se.

Counsel for Respondent-tenant, Adriana Dalpio and Respondent-undertenant, Charles Nassif filed a written answer dated February 23, 2024, asserting a general denial, several affirmative defenses and three counterclaims. (NYSCEF Doc. 8). One of the affirmative defenses is that there is an excusable absence from the subject apartment. Another affirmative defense/1st counterclaim claims the refusal to renew the lease constituted "impermissible retaliation" within the meaning of Real Property Law § 223-b. The answer further contains a second counterclaim of harassment under NYC Admini. Code § 27-2005(d) and a third counterclaim for attorney's fees based upon a reciprocal right pursuant to Real Property Law § 234.

Before commencement of the trial, per decision/order dated January 27, 2025, pursuant to CPLR § 409 (b), this Court summarily determined that there was no triable issue of fact regarding possession of the subject premises against Respondents-undertenants, Raissa Mendome Mvoume, and David Lypka. The court noted it was undisputed that Mr. Lypka served only as a guarantor and never resided in the apartment, while Ms. Mvoume had vacated the apartment prior to this trial.

The Petition was dismissed as against Raissa Mendome Mvoume, and David Lypka and their names were removed from the caption of this proceeding. Although Raissa Mendome Mvoume and David Lypka were no longer parties to the instant matter per the CPLR § 409 (b) motion, they participated at trial as witnesses for the Petitioner.

EVIDENCE-EXHIBITS

Counsel for both sides signed a pre-trial stipulation dated February 6, 2025, as to the admissibility of trial exhibits, excluding those sealed by court's January 27, 2025. (NYSCEF Doc. No 101). A table of the trial exhibits with corresponding numbers and letters was annexed as Exhibit A to the trial stipulation. (NYSCEF Doc. 108).

Petitioner stipulated to the admissibility of certain exhibits; Respondent's Exhibit A — NYS Dept of Labor Docs, (NYSCEF Doc.56); Respondent's Exhibit B - Con Ed Records (NYSCEF Doc. 29-30); Respondent's Exhibit C - Marriage Certificate (NYSCEF Doc. 31); Respondent's Exhibit D — Licenses (NYSCEF Doc. 59); Respondent's Exhibit E - Craigslist Ad (NYSCEF Doc. 33); Respondent's Exhibit F — Roommate Agreement (NYSCEF Doc. 34); Respondent's Exhibit G- Chase Statements (NYSCEF Doc. 35); Respondent's Exhibit H — Citi Statements (NYSCEF Doc. 36); Respondent's Exhibit I — Empire Blue Cross Docs (NYSCEF Doc. 37); Respondent's Exhibit J — Interspousal Transfer Grant Deed (NYSCEF Doc. 55); Respondent's Exhibit K — Original Lease (NYSCEF Doc. 39); Respondent's Exhibit L — Proof of death of Adriana Dalpio's father (NYSCEF Doc. 40); Respondent's Exhibit M — Social Security Statements (NYSCEF Doc. 41); Respondent's Exhibit N — Stimulus Payment Docs (NYSCEF Doc. 42); Respondent's Exhibit O — Tax Docs (NYSCEF Doc. 43); Respondent's Exhibit P — TD Bank Statements (NYSCEF Doc. 44); Respondent's Exhibit Q — Voter Registration Dalpio (NYSCEF Doc. 45); Respondent's Exhibit R — Voter Registration Nassif (NYSCEF Doc. 46); Respondent's Exhibit S — Info for cancelled flight dated March 24, 2020 (NYSCEF Doc. 47); Respondent's Exhibit T — cancelled flight dated September 11, 2020 (NYSCEF Doc. 48); Respondent's Exhibit U -cancelled flight dated November 11, 2020 (NYSCEF Doc. 49); Respondent's Exhibit V - cancelled flight dated February 3, 2021 (NYSCEF Doc. 50); Respondent's Exhibit W - cancelled flight dated February 15, 2021 (NYSCEF Doc. 51); and Respondent's Exhibit X — Info for flight dated April 26, 2021 (NYSCEF Doc. 52).

Respondent stipulated to the admissibility of the following exhibits: Petitioner's 1 — Certified Deed (NYSCEF Doc. 102); Petitioner's 2 — Certified MDR (NYSCEF Doc. 103); Petitioner's 3 — Certified DHCR Rent Registration History (NYSCEF Doc. 104); Petitioner's 4 — Renewal Lease (NYSCEF Doc. 105); Petitioner's 5 — Roommate Agreement (NYSCEF Doc 106); and Petitioner's 6- Ledger (NYSCEF Doc. 107).

Other than the stipulated documents 1-6, Petitioner offered Exhibit 7 — payment checks (NYSCEF Doc. 108). Additionally, Respondents other than the stipulated documents Respondents' A-X, they offered in evidence Exhibits, Y, Z, AA through JJ which were admitted except for Respondents' BB and CC which were either not admitted or withdrawn. Respondent's Exhibit AA was the Deed for California house dated June 10, 2019 (NYSCEF Doc.116); Exhibit DD (1- 17) - Color photos (NYSCEF Doc. 120); Exhibit EE - Certified copy of California Grant Deed (NYSCEF Doc. 121); Exhibit FF — Certified Copy of California Deed of Trust  ¹ (NYSCEF Doc. 122); Exhibit GG — Certified Copy of Mortgage Approval letter (NYSCEF Doc. 123); Exhibit HH — Certified Copy of Accepted Counteroffer (NYSCEF Doc. 124); Exhibit II and JJ — text messages. The court also took judicial notice of the roommate holdover LT #318572/22/NY; LT # 3037171/21/NY and civil court case - CV 012301/24/NY.

Additionally, counsel for Respondents' filed a notice dated March 24, 2025 of intent to request that Judicial Notice be taken of three (3) Executive Orders, two (2) of which are from the State of California including: (1) NYS Executive Orders 8.202 through 202.111 issued by former Gov. Andrew Cuomo regarding the disaster finding and corresponding state of emergency occasioned by the COVID-19 pandemic commencing on; (2) CA Executive Order N-33-20 issued March 19, 2020 which imposed a stay at home order; and (3) CA Executive Order N-07-21 issued June 11, 2021 which terminated the stay at home order. The court took Judicial Notice of the orders annexed as Exhibits A - C. (NYSCEF Docs. 113-115).

The court conducted a trial on this matter on February 7, 2025, March 14, 2025, March 26, 2025, March 27, 2025, June 18, 2025, July 11, 2025, August 19, 2025, September 8, 2025, and November 7, 2025. The matter was calendared for submission of post-trial memorandum on January 6, 2026. Both parties filed post-trial memorandum on NYSCEF.

TESTIMONY

Petitioner offered testimony from three witnesses, John Kapetanos (principal owner), Raissa Mendome Mvoume and Davis Lypka. Respondents' witnesses included Adriana Dalpio and Charles Nassif.

Testimony of John Kapetanos

John Kapetanos testified on direct examination that his business address is 3776 62nd Street, Woodside, New York; that his relationship to the Tiffany Properties is that he is the principal owner of the subject premises for 44 years; that he would visit the building two (2) to three (3) times a week, and during the winter he would visit the building more regularly, especially to make sure that the boiler provided adequate heat to the building; and less so in the spring and summer months.

He testified that there are 10 units in the subject building, that he is a hands-on owner, that in January of 2021 he visited the building; that he observed a woman at the subject premises; that her name was Raissa Mendome Mvoume; that he spoke to her, and she told him she lived in the subject apartment 3W; that she did not believe that he was the owner of the building and that Adriana Dalpio gave her a lease to the apartment and she was the tenant of the apartment; that she had a roommate agreement - (Petitioner's 5 and Respondent's Exhibit F in evidence); that the roommate agreement was for the period of July 1, 2020 through April 30, 2021. The court allowed judicial notice of the non-renewal notice with a termination date of April 30, 2021.

Moreover, Mr. Kapetanos testified that he was the signatory on the non-renewal notice and as such that he signed the notice; that the signature was the same signature for another case which was discontinued previously due to an error; that he did not see Adriana Dalpio for more that nine (9) months before January 2021which included the period of time covering May 2020 through April 2021; that his last visual encounter with Adriana Dalpio was approximately in March of 2020; that he has a rent box in which to drop off the rent; that he gives the tenants envelopes for their rent payment; that he visits the building every 5th or 6th day of the month; that he went to the building in Apil 2020 and April 2021 and at that time visited at a minimum of once a month at which time he visited the hallways, the basement, the boiler, the sidewalks and checked the rent box; that his visits are for one to one and half hours and usually between 10 a.m.-12:00 p.m. which can be on a weekday or a weekend; that he never knocks on the door of his tenants; that he only saw Respondent, Adriana Dalpio that one time in March 2020 and then possibly once or twice during the time period of April 30, 2020- April 30, 2021; and that there is a superintendent who lives next door to the subject apartment. Lastly, the Court took judicial notice of the HPD violations from the official HPD website for the subject premises which showed nine (9) open violations.

On cross-examination John Kapetanos testified that he owns several buildings, about five (5), although not all of the buildings are located in Manhattan; that he visits all of the buildings two (2) - three (3) times a week in the winter and that he visits the other buildings at least once a week in the spring and summer months; that of the five (5) buildings that he owns, three (3) are in Manhattan and two (2) of the buildings are in Woodside, Queens; that some of the other buildings that he owns are larger buildings, that one (1) of the buildings has thirty-nine (39) families and that the smallest building that he owns has three (3) families; that the subject building has 10 units; that the fourth building that he owns has six (6) families and that last building has sixteen (16) families; and that his entire portfolio is comprised of 74 apartments.

He also testified on cross examination that Raissa Mendome Mvoume told him that Adriana Dalpio held herself out to her as the owner of the building; that this is the first non-primary residence proceeding that he has ever commenced; that other than Adriana Dalpio there are no other rent stabilized tenants in the building; that no one else in the building calls HPD; and that the other nine (9) occupied units in the building are market rate rentals.

On re-direct, John Kapetanos testified about the HPD violations; that the self-closing door violation was repaired and the door spring was replaced seven (7) times, but the tenants have repeatedly broken the door; that he sometimes brings the superintendent on his visits; that his real estate holdings are his "pride and joy" except for his hard work as a waiter; and that once he met Raissa Raissa Mendome Mvoume at Diner 2024.

Testimony of Raissa Mendome Mvoume

Raissa Mendome Mvoume testified that she currently resides at 347 West End Avenue, Apartment #1, New York, New York; that she first moved to the subject premises on June 30, 2020; that she met Respondent - Charles Nassif on June 30, 2020; that he told her he was living there by himself; that he asked her to bring a money order for a deposit in the sum of $2,500.00 in cash, that no checks would be accepted; that the apartment was empty; that he called Adriana Dalpio to inquire whether she could Zelle the money and she agreed; that Nassif showed her a bedroom in the apartment; that the bedroom had a boxspring and mattress with old sheets and two (2) pillows; that the apartment listing was on "Craigslist"; that the pictures on Craigslist were pretty but in real life the bedroom was filthy; that there was someone else living there who smoked; that Respondents wanted someone for a year; that the bathroom was bad; that she physically moved into the apartment on July 1, 2020 and moved out September 2024; that no one lived in the apartment; that she never lived in the apartment with the Respondents; that she met Johnny - the landlord - in January of 2021; that Johnny the owner knocked on the door of the subject apartment in January 2021 and she told him that she was renting a room for six months; that Charles Nassif told her he owned the apartment; that she found Bernie in her apartment showering; that Charles said that Bernie is their friend who checks the mail; then she said she moved out of the subject premises one year ago; that she lived with Adriana in February of 2021 but then after that from July of 2023 through February 2024 Adriana slept in the living room and turned it into her bedroom; that in February 2021 through February 2023 then Charles and Adriana moved back in; that from February 2021 through February 2023 all three of them were living in the apartment; that then in July of 2020 through February of 2021 for eight months she lived there alone in the apartment; that the Respondents told her to go back to Africa; that she stopped paying rent in February of 2021; that Adriana and Charles offered her money not to testify in this case; that they were running a scheme; that there was someone else living in the apartment before her by the name of Christopher; that she saw the name on the mailbox; that before that there was a cable bill for apt 3W in the name of Christopher; that she paid electricity for the apartment in cash; that all payments were made through Zelle or cash; that the payments were made by David Lypka (see Petitioner's 7 in evidence -as proof of payments); that the Respondents sued her in two lawsuits, that both lawsuits are done but now there's a third lawsuit against her boyfriend who was the guarantor; that they are suing for $70,000; that on July 1, 2020 there was no clothing in the apartment except for a mattress in the bedroom and no clothes of Adriana; that Adriana called her on January 2021 to get mail for her taxes; that at that time she saw Christopher Lopez's mail in the mailbox; that the Respondents moved into the apartment in February of 2021; that when Adriana moved back into the apartment Adriana was screaming on the phone to the landlord Johnny; that Respondents broke the toilet so she had to use the bedroom as her bathroom; that Charles Nassif walked naked in the house and she was afraid he would rape her; that she was the ex-wife of a U.S. veteran; and that Charles harassed her in the street and even in the laundromat two blocks away.

On cross-examination Raissa Mendome Mvoume testified that on June 30, 2020 she saw an ad on Craigslist for the subject premises; that she took a look at the room and noticed there were old sheets and the room was filthy but rented the room despite this because she decided to clean it; that she asked to buy her own furniture and Adriana told her she could get furniture then Adriana said she could keep the furniture; that she moved from California to Soho and then to the subject premises; that the apartment was cold due to something in the basement or other apartments; that is why Johnny came to the subject premises to inquire about the heat which is when Johnny discovered she was living there; that Johnny never bought her coffee but she went to the diner with him; that she was the first "black" person to live in the building; that Johnny suggested she call the police; that Johnny told her he has a right to check who was in his building; that Johnny asked her who brought her to the apartment; that she said to Johnny she was living in the apartment and Respondents were in California; that Charles told her you are a migrant and broke her license paper for hairdresser school; that she could not live at her boyfriend's house in Manhattan because his family had to approve of her; that no visitors were allowed at the subject premises according to the roommate agreement (Respondents' F in evidence); that Charles told her that she would face criminal consequences, if she did not leave the apartment; that she was served with papers in the holdover brought against her; that the roommate agreement was from July 1, 2020 to April 30, 2021 but she stayed beyond those dates; thereafter, the court took judicial notice of three (3) roommate holdovers as follows: LT # 303717/21, LT # 318510/22 and LT# 318572/22 which was the successful holdover against her; that in a stipulation dated Augst 24, 2023 she agreed to a final judgment of possession against her and to vacate by October 16, 2023; that she stayed because she wanted to wait to see what would happen with the case; that she stayed 899 days after the lease expired because of the court proceedings but sometimes Adriana was mean to her and deprived her of the bathroom; that she worked for FedEx from 2:00 a.m. to 9:00 a.m.; that Respondents would play "KKK" videos and racist videos that were shown when she was in the apartment; that sometimes Charles and Adriana would hog up the bathroom intentionally and she would have to urinate in her bedroom; that Respondents intentionally deprived her use of the bathroom; that Charles and Adriana in February 2021 offered her $10,000 to move; that Johnny - the landlord - did not offer her to stay in the apartment if she cooperated with this case nor did he offer her another apartment; that Charles told her that there was another guy living in the apartment who was a smoker; and that she had a conversation with Charles and he told her that he runs an Airbnb in the subject premises to help other people.

On re-direct Raissa Mendome Mvoume testified that no one lived with her in the subject apartment from July 20, 2020 through February 2021; that Charles and Adriana during those months were in California; and that in February 2021 Charles and Adriana offered her $10,000 to not testify in court.

Testimony of David Lypka

David Lypka testified that he resides at 347 West 87th St. apt. 1, New York, NY; that his relationship to Raissa is that she is his girlfriend; that she moved into the subject premises on July 1, 2020 but that he lives elsewhere with his brother; that his apartment is too small; that he visited Raissa in the apartment; that there was no one else living in the subject premises when she moved in; that between July 1, 2020 and February 1, 2021 he visited the apartment at least once a week; that he only saw one person with the key "the key guy" during July 1, 2020 through February 2021; that during those visits he never saw Adriana or Charles in the apartment; and that he never saw Adriana's clothes in the subject premises.

On cross examination Mr. Lypka testified that he was the person who picked up the key for the subject premises; that he saw Charles at the subject premises; that the roommate agreement was signed on June 30, 2020; that he was present at the time and paid money to Charles; and that Charles was there for the agreement signing.

Thereafter, Petitioner asked the court to take judicial notice of the pleadings and the contents in the affidavit of services and to amend the Petition through date to February 2025 for inclusion of all outstanding use and occupancy and for a final judgment against Respondents Adriana Dalpio and Charles Nassif and a money judgment for $82,492.72 through February 28, 2025 against Adriana Dalpio.

Testimony of Adriana Dalpio

Respondent Adriana Dalpio testified that she lives at the subject premises since 1991; that she is 70 years old; that Charles Nassif is her husband and the Co-Respondent and has resided at the subject premises since 2003 when they married; that her mother died at age 92 in September 2017; that her father died in March 2021 at 93 years of age; that her father had a hearing issue and had a hard time making medical appointments for himself; that she took on the role of his caretaker via the telephone from New York; that she had to be in Ontario, Canada - Thunder Bay with her parents and she grew up there; that she cared for her father who suffered from congestive heart failure; that her father's health deteriorated after his diagnosis but that in 2019 she was not in Canada for Christmas; that her father started getting sick but she did not live in Canada at that time; that in December 2019 her husband and her went to California but she had to return to New York for a February 8, 2020 colonoscopy and stayed twelve days; that her husband bought a house in Palm Springs, California in June 2019 and she stayed there from December of 2019 to February 8, 2020 when she returned to New York City; that she is self-employed as a face painter; that her husband is a caterer in New York City; that she bought an airplane ticket to Palm Springs from December 24, 2019 to March 24, 2020; that she was in Palm Springs, California in March of 2020; that her friend from Toronto who is a nurse came to Palm Springs but went to Canada; that on March 16, 2020 she went into lockdown in California and had to stay at "home" due to COVID-19; that people in New York were dying; that there were trucks outside of hospitals and dead bodies inside refrigerator trucks; that she could not fly back to New York City; that she cancelled her March 24, 2020 flight from Palm Springs (see Respondent's S in evidence airline ticket); that she chose not to travel to New York City on March 24, 2020 because it was the "epicenter of the pandemic" and heard that people were dying there; that there was a Governor Gavin Newsom stay home Order (CA Executive Order N-33-20 issued March 19, 2020); that thereafter the court took judicial notice of the COVID-19 pandemic effective March of 2020; that she made the decision not to board the flight because she was scared to return to New York City; that she does not know if the flight was cancelled but she decided not to go to New York City; that her father in 2019 was 92 years old and had heart failure; that he was hospitalized and at times she had to go care for him from New York by booking his medical appointments, car tire appointments or pharmacy requests; that her parents were married for 62 years; that she went to Canada on September 11, 2020 to see her father in the hospital; that she could not get an N95 mask from Palm Springs, California; that she had to isolate herself for two weeks when she arrived in Canada after traveling; that Respondent's T in evidence reflects three (3) connecting flights she had to take from Palm Springs, California to Toronto, Canada; that she would have preferred a different flight path; that her father was in the hospital and she cannot remember when she left back to Palm Springs but it was on or about November 11, 2020; that she was not in New York City; that she was in Canada for two months; that there are no direct flights to Thunder Bay, Canada; that she flew twice to Canada and she had to isolate herself for two weeks; that NYSCEF Doc. 51 contains the airplane tickets from her visit to Canada on February 15, 2021 to see her dad in the hospital; that she tested for COVID; that an N95 mask was provided for her visit and booties for her feet; that she was in denial of her father's illness; that nurses came daily and checked in on his oxygen; that her father died on March 26 or 27, 2021 (see NYSCEF Doc. 40); that from February 15, 2021 through March 27, 2021 she was in Canada helping her father with cooking and cleaning; that she planned the funeral; that her brother was the executor of the will because he is the engineer and she is the artist; that she put together the pictures for the funeral; that she sold her father's house; that she stayed in Canada until March 31, 2021 because the Roommate Agreement was ending; that she came back to New York on April 26, 2021 and never left; that she was vaccinated for the first time in New York at a CVS Pharmacy in June 2021; that she then received two other vaccine doses a few months later; that she did not want to get a third vaccine; that she is married to Charles Nassif since January 22, 2003; that she wished that she had bought the Palm Springs house herself; that there was an Interspousal Transfer Grant Deed from State of California on the house; that she wrote the subject premises on the deed form as her address; that from May 1, 2020 through April 30, 2021 she received pandemic unemployment benefits (see NYSCEF Doc. 56); that she could not work during COVID because her work involved face to face work (i.e. face painting); that she received unemployment benefits for a few months but she used her New York address for the benefits; that she received a stimulus check which was sent to the subject premises dated January 6, 2021; that her Social Security award letter from October 13, 2020 was sent to the subject premises; that her tax year forms 2020 and 2019 listed the subject premises; that her New York State tax form Part F says that she lived in New York City in 2020 for 12 months; that although she did not physically live in New York City for 12 months in 2020 she believes that the word "lived" means she lived in New York City, although she admits to being only in New York City from February 2020 for a few days for a medical procedure and no other time; that her New York State driver's license reflects the subject premises; that her medical insurance reflects the subject premises in October 2020 and October 2019; that her Chase Bank statements for May 2020 reflect the subject premises as her address; that she needed help with the rent because of the Palm Springs mortgage; that she needed a short-term person to help with the rent; that she placed an ad on Craigslist in 2020 for the subject premises; that although this was a roommate agreement she did not cohabit with the roommate; that her husband arranged a time for the roommate to see the apartment; that she rented the one bedroom fully furnished; that she placed in the living room a divider created by a cloth curtain; that she separated the bedroom from the living room; that she always had intentions to return to New York City but did not know when she will return to New York City because she was in a "home" and could go to the backyard in California instead of a small apartment in New York City where people were dying; that it was acceptable for her husband to come to New York because she said it was his choice; that there was a curtain placed in between the living room and the hallway; that the roommate worked for FedEx; that the roommate agreement said no visitors and had to wear a face mask; that she called the roommate periodically on Skype about the room; that the roommate told her she loved the bedroom and sent her heart emojis; that she did not offer the roommate Raissa $10,000 to not testify in court; and that she never placed an ad on Airbnb for the subject premises.

On cross examination Adriana Dalpio testified that she came back permanently to New York on April 26, 2021; that COVID scared her; that she was vaccinated in June 2021; that her apartment measures 500 square feet with one bedroom; that she was comfortable living with the roommate and with another person; that there was a kitchen and a bathroom; that there was an area roped off in the living room which is the largest room; that she did not sign the roommate agreement; that her husband signed the roommate agreement on her behalf but that she would have signed the agreement; that the 2020 New York State tax return Section" F" indicates that she lived twelve (12) months in New York City, however, she does admit that she did not live in New York City for those 12 months of that 2020 tax year; that the Palm Springs house did not list her on the deed; that she does not have that kind of money to buy the Palm Springs house; that Respondent's J in evidence - the inter spousal transfer grant deed - says that she bought the house; that in February 2021 she returned to New York City for a medical procedure; that her first time in Canada she believes was in November of 2020; that she took three flights to get to Thunder Bay, Canada; that Charles booked the flights because only three flights were available and she was not vaccinated but was afraid of COVID and everyone was afraid; that from June 2019 through December 2019 she had a roommate doctor from China but she can't remember his name; that she had clothes on the rack which she moved to her hallway closet and then she placed them in a rack in the living room; that there was another roommate before the doctor from China who stayed there three months, but was not sure of the name; that she went to California before Christmas 2019; that she came back to New York in April 2021, after her father died; that for 15 months she was not in New York City except for February 2020 for a medical procedure which totaled 10 days.

On re-direct Adriana Dalpio testified that her name was never on the deed for the California house; that the 2020 tax return which indicates that she lived in New York City for twelve (12) months in 2020 is accurate because New York City is her home; that she did not file any taxes in California or Canada; that she never worked in California nor received any benefits from the State of California; and that she moved into the subject premises in 1991.

Testimony of Charles Nassif

Respondent, Charles Nassif testified regarding Respondent's Exhibit DD, a photograph of a curtain which was placed between the living room and the kitchen; that the curtain consisted of three layers of curtain; that the photograph of the curtain demarcated Respondent's Exhibit DD was taken on December 15, 2021; that the photograph of Respondent's Exhibit DD4 in evidence is a view looking from the hallway; that there is a square arch where the curtain was located; that Respondent's Exhibits DD4 - DD15 in evidence represent photographs which were taken by him on March 28, 2025; that the curtain was nailed and stapled. Further, Mr. Nassif testified that Respondent's Exhibit DD7 in evidence depicts a view from the kitchen to the living room; that Respondent's Exhibit DD8 in evidence shows another angle of the view from the kitchen to the living room; that Respondent's Exhibit DD9 in evidence is a repeat photo; that Respondent's Exhibit DD10 in evidence is a view from the bathroom; that Respondent's Exhibit DD11 in evidence is a view from inside the kitchen; that Respondent's Exhibit DD12 in evidence is a view from the kitchen; that Respondent's Exhibit DD13 in evidence shows a view from the apartment entrance door and the bedroom with its own door; that Respondent's Exhibit DD14 and DD15 in evidence are photographs of the bedroom; that Respondent's Exhibit DD16 in evidence is a photograph of Adriana Dalpio in Thunder Bay, Canada at the hospital where her father was and was taken a week before he passed away; that Respondent's Exhibit DD17 in evidence is a "selfie" of Mr. Nassif taken on a flight from Palm Springs to New York City; that he married Ms. Dalpio on January 22, 2003; that Adiana Dalpio's mother died in September of 2017 in Thunder Bay, Ontario, Canada; that in June 2019 he bought the house in Palm Springs; that Ms. Dalpio had nothing to do with the purchase; that he bought it and took out a mortgage; that he was living in New York City when he bought the house; that he stayed in Palm Springs in December 2019; that Adriana Dalpio came with him to Palm Springs in December 2019 but that she returned to New York City in February 2020 for two weeks for a medical procedure; that Adriana Dalpio returned to California on February 26, 2020; that he had tickets to return to New York City in March 2020; that he changed the ticket because of Covid; that he flew back to New York City mid-June 2020 but his wife was too afraid to return to New York City at that time; that he travelled to New York City to take care of things; that he placed an ad in June 2020 because the current roommate wanted to leave; that Lee was a roommate from China and he was a doctor; that "Lee" moved in May 2020 because he wanted to get to China; that there was another roommate Chris prior to that in August 2019 to November 2019; that he placed an ad on Craigslist in June 2020 for a replacement roommate for Lee; that he needed a roommate since he incurred extra expenses in California to maintain the house pool and gardening; that he lived with in Mvoume — the new roommate - in July 2020 at the subject premises until August 5, 2020 when he returned to California; that he tried to get high quality N95 masks but was unable to obtain them; that his wife made her own masks by putting swifter pads in a cloth mask with goggles to board an airplane; that Adriana Dalpio's father passed away on March 27, 2021; that the roommate agreement with Raissa Menvome began July 2020 and ended April 30, 2021; that he was only seeking someone for a short period of time; that he got his first COVID vaccine in May 2021 and that Adriana Dalpino got her vaccine after him; that she is thirteen (13) years older than him; that Raissa Menvom vacated the subject premises on October 16, 2023; that he never used Airbnb because in New York it is illegal, that he was part of a group who advocated against Airbnb; that he never offered Raissa $10,000 to refrain from testifying in this trial; that he has a civil case with Raissa Mvoume involving $50,000; that he met Raissa through a Craigslist advertisement; that he showed her the apartment but she thought the apartment was different from the ad placed on Craigslist; that he never moved out his furniture but signed a roommate agreement on his wife's behalf; that Raissa moved in on July 4, 2020 and he lived with her for some time; that he placed Covid safety protocols while living there which included: (1) wearing of masks while in the common arrears, (2) maintaining use of separate sink in kitchen to be used by Raissa Mvoume; (3) refraining from showering for 3 days after Raissa showered; that he left on August 5, 2020 but returned on January 4, 2021; that Raissa Mvoume did not wear masks in January 2021; that she got upset when she was served with court papers for eviction; that the Roommate Agreement ended April 30, 2021; that she refused to leave and called the landlord John; that she was served a second time with papers but left before Marshal came on October 16, 2023; that the decision to take on a roommate was a financial decision, that if he had sublet then he could have charged the full rent and an additional 10 percent; that he and his wife did not want to sublet and only wanted a roommate; that the legal rent was $1,792.53 monthly and that they charged $1,250.00 per month; that he charged $1,250 and not the pro rata roommate share because he considered the pricing based on the square footage of the unit and Gramercy Park area location; that last time Raissa paid rent by her boyfriend was in January 2021; that she paid seven (7) months of rent; that she stopped paying because she called the landlord; and that he denies walking around naked or playing KKK videos in the subject premises while Raissa was there but that he was watching a video of a Denzel Washington movie; that he denies offering Raissa money to not testify in court nor to buy her out. On cross examination Mr. Nassif indicated he is not the tenant of record; that he never signed the lease for the subject premises; and that Adriana Dalpio is the tenant of record.

Thereafter, Respondents rested.

Petitioner called John Kapetanos as a rebuttal witness. Mr. Kapetanos testified that use and occupancy has not been paid by Respondents since the commencement of this case; that the monthly rent/use and occupancy is $1,793.32. The Court granted Petitioner's request to amend the Petition to reflect all outstanding use and occupancy through November 30, 2025. Lastly, Petitioner asked the Court award it a possessory and money judgment against Respondent — Adriana Dalpio in the amount of $98,632.60 and a possessory judgment, against Charles Nassif, after trial.

DISCUSSION

Based upon the admitted documentary evidence, credible testimony of John Kapetanos, Raissa Mendome Mvoume and David Lypka, the contents of the court file, the Petitioner has proven the prima facie elements of the Petition. Specifically, Petitioner proved that it is the owner of the subject premises (certified deed); that Respondent's tenancy was properly terminated by a Notice of Termination dated January 21, 2021 with a termination date of April 30, 2021; that the subject premises is duly registered as rent stabilized with the Division of Housing and Community Renewal ("DHCR") (certified copy of DHCR rent registration); that the subject building is registered as a multiple dwelling with the Department of Housing Preservation and Development (HPD) (certified copy of current multiple dwelling registration); that Respondents continue to holdover at the subject premises; that Respondent - Adriana Dalpio - is the leaseholder of the subject premises (leases); and that Respondent - Dalpio owes outstanding use and occupancy (rent ledger).

Petitioner commenced this summary holdover proceeding based upon a claim that Respondent - Dalpio - is not utilizing the subject premises as her primary residence, that she has not maintained an ongoing substantial physical nexus to the premises for actual living, that Respondent failed to spend more than 183 days out of the year - 2020 - residing at the subject premises which is confirmed and substantiated by Respondent's own testimony.

The Rent Stabilization Code (9 NYCRR 2524.4 [c]) requires that a premises be used by a tenant as a primary residence and authorizes a landlord to recover possession of premises when:

The housing accommodation is not occupied by the tenant, not including subtenants or occupants, as his or her primary residence, as determined by a court of competent jurisdiction; provided, however, that no action or proceeding shall be commenced seeking to recover possession on the ground that the housing accommodation is not occupied by the tenant as his or her primary residence unless the owner or lessor shall have given 30 days' notice to the tenant of his or her intention to commence such action or proceeding on such grounds. Such notice may be combined with the notice required by section 2524.2 (c) (2) of this Title. (9 NYCRR 2524.4 [c]); Glenbriar Co. v. Lipsman, 5 NY3d 388 (2005).

Moreover, primary residence is defined in R.S.C. § 2520.6 (u). This section provides that although no single factor shall be solely determinative of a primary residence in determining whether the subject premises is occupied as a primary residence, factors may be the place of residence on any tax return; motor vehicle registration; driver's license or other document filed with a public agency; use by an occupant of an address other than such housing accommodation as a voting address; occupancy of the subject premises for an aggregate of less than 183 days in the most recent calendar year, except for temporary periods of relocation pursuant to R.S.C. §2523.5(b)(2)² of the Rent Stabilization Law and subletting of the subject premises.

According to RSC §2523.5(b)(3) which was formerly known as RSC §2523.5(b)(2), the minimum periods required for primary residency shall not be deemed to be interrupted by any period during which the "family member" temporarily relocates because he or she: engaged in active military duty; enrolled as a full-time student; not in residence due to court order; engaged in employment requiring temporary relocation from the subject premises; hospitalized for medical treatment; or has such other reasonable grounds that shall be determined by the DHCR upon application by such person.

Lastly, relevant case law has defined primary residence as an ongoing, substantial physical nexus with the subject premises for actual living purposes. Katz Park Ave. Corp. v. Jagger, 11 NY3d 314 (2008); 68-74 Thompson Realty, LLC v. McNally, 71 AD3d 411 (1st Dep't 2010); Emay Properties Corp. v. Norton, 136 Misc 2d 127 (AT 1st Dep't 1987).

Here, the evidence and credible witness testimony presented by Petitioner at the trial demonstrated by a preponderance of the evidence that Respondent - Dalpio - did not use the subject premises as her primary residence from late December 2019 through April 26, 2021. Glenbriar Co. v. Lipsman, 5 NY3d 388 (2005); SJS Thompson, LLC v. Singer, 77 Misc 3d 136(A) (AT 1st Dep't 2023); 284 Parkway Assocs. v. Despinosse, 73 Misc 3d 135(A) (AT 2nd Dep't 2021).

Conversely, Respondent did not rebut Petitioner's evidence nor demonstrated a substantial physical nexus to the subject premises. Notably, Respondent did not prove her defenses and affirmative defenses raised in the answer which were that there is an excusable absence from the subject apartment, nor did she establish "impermissible retaliation" within the meaning of Real Property Law § 223-b nor counterclaim of harassment under NYC Admini. Code § 27-2005(d).

Specifically, Respondent's testimony failed to establish that she maintained an ongoing, substantial physical nexus with the subject premises for actual living purposes for the period of late December 2019 through April 26, 2021. She admitted leaving the subject premises on December 24, 2019 to stay at the Palm Springs, California house that her husband had purchased and that she had a return ticket for March 24, 2020. She then decided to remain in California due to the COVID-19 pandemic  ³ because she was afraid to travel. Nevertheless, she traveled to Canada on September 11, 2020 to see her father in the hospital and exposed herself to three air crafts in order to arrive in Thunder Bay, Canada. After she boarded her flight to Canada in September of 2020, she had the choice to return to the subject premises in New York and to her "home" but she decided to return to the Palm Springs, California home.

Once again, she flew to New York City on February 3, 2021 for a medical appointment. Then, she boarded another aircraft on February 15, 2021, to see her father in Canada, despite her fears of potential exposure to the COVID-19 virus.⁴ She remained away from the subject premises until her admitted return on April 26, 2021. This return was only after she received the Notice of Termination dated January 21, 2021. This Court interprets that Ms. Dalpio's return is not a coincidence and finds incredible that her April 26, 2021 return was timed with the expiration of the Roommate Agreement with Ms. Mvoume. Following that reasoning this implies that Ms. Mvoume's occupancy of the subject premises was a sublet and not a roommate situation. This also supports the credible testimony of Ms. Mvoume that her occupancy of the subject premises was a sublet. Subletting is a factor in determining that a tenant does not maintain a rent regulated apartment as their primary residence. 215 W 88 LLC v. Sitney, 81 Misc 3d 1250(A), 204 N.Y.S.3d 923 (NY Cty., Civ. Ct. 2024).

Moreover, John Kapetanos credibly testified that in January of 2021 he visited the subject building and learned from Raissa Mendome Mvoume that she lived in the subject premises because Respondent - Adriana Dalpio - gave her a lease to the apartment, and she was the "tenant" of the apartment.

Here, what really occurred is that Respondent - Dalpio's landlord discovered Raissa Mendome Mvoume was residing at the subject premises without Ms. Dalpio's co-habitation and that she was charging Ms. Mvoume $1,250.00 per month, although her legal rent was $1,792.53 monthly. This charge exceeded the roommate pro rata share. Nevertheless, per the testimony of her husband — Charles Nassif - he considered the monthly charge based on the square footage of the subject premises and the Gramercy Park area location an appropriate pricing. If this were a roommate agreement which is Respondent's characterization of her relationship with Ms. Mvoume, then it is contrary to the law. Significantly, the arrangement with Ms. Mvoume was part of a financial gain which Ms. Dalpio and Mr. Nassif admitted to during their trial testimony. Respondent had a pattern of renting out the subject premises to many individuals and could not even remember the names of those individuals that she indicated were her "roommates," although she allegedly resided with them as roommates in an apartment measuring 500 square feet. She testified that her husband knew their names. Furthermore, Mr. Nassif admitted that he was willing to take the risk of being exposed to COVID-19 in exchange for the benefit of obtaining money from Ms. Mvoume. These monies were to help pay bills for the Palm Springs, California house he jointly owns  ⁵ with Ms. Dalpio. The bills included the gardener, the maintenance of the pool and the mortgage. This was all possible while charging Ms. Mvoume an unlawful monthly rent and maintaining a New York City — Gramercy Park — pied-a-terre at an affordable rent regulated rate.⁶

When Respondent realized that Petitioner had discovered her actions, she attempted to desperately disguise them with a convenient but incredible COVID-19 excuse. There was no medical testimony establishing that Ms. Dalpio was more susceptive than others to COVID-19, if she returned to the subject premises from Palm Springs, California nor testimony that Ms. Dalpio suffered from an underlying health condition that placed her at risk by returning to the subject premises. During the COVID-19 pandemic in New York City many individuals with legitimate underlying health conditions or who were immuno-compromised remained in New York City and did not have the option to leave.

Respondent's desperate acts continued with harassment and intimidation of Ms. Mvoume. She deprived Ms. Mvoume — the driving force of her landlord's instant case against her — the use of the bathroom by either intentionally damaging the toilet or "hogging up" the bathroom at the subject premises which caused Ms. Mvoume to have to use her bedroom as a bathroom, played racist videos while in the presence of Ms. Mvoume, threatened her with criminal action, called Ms. Mvoume a "migrant" and told her to go back to Africa, tore apart Ms. Mvoume's hairdresser's license; allowed Mr. Nassif to walk around naked at the subject premises in the presence of Ms. Mvoume which she testified scared her to the point that she feared Mr. Nassif might rape her, and offered Ms. Mvoume $10,000 in exchange for her silence, if she agreed not to testify against her in this trial.⁷

A non-primary residence analysis is a fact intensive inquiry entailing a variety of factors and no single factor shall be solely determinative. Katz Park Ave. Corp. v. Jagger, supra.

Factors may be the place of residence on any tax return, motor vehicle registration, driver's license or other document filed with a public agency. Respondent's attempt to show that her absence from the premises was excusable merely raised questions of fact and credibility, as to certain documents admitted in evidence to establish her residency. SJS LLC Thompson, LLC v. Singer, supra. Here, this Court does not give much weight, nor attributes credibility to Respondent's self-serving documents which include New York State Department of Labor documents, New York State driver's license, New York City Board of Elections voter registration; and 2019 and 2020 tax returns listing the subject premises as her place of residence. (Respondent's A, D, Q, & O in Evidence). For instance, Ms. Dalpio admitted during her testimony that her New York State & City 2020 tax return under box F indicate that she lived in New York City for twelve (12) months out of the year 2020. (Respondent's O in Evidence). However, she testified she was living in California from December 24, 2019 until at least April 2021 with the exception of two visits to Canada. When faced with contrasting evidence as demonstrated here, the Court finds particularly probative the proof of the location that a tenant regularly physically occupies. The testimony demonstrated that the Respondent regularly physically occupied the Palm Springs, California house from December 24, 2019 until at least April 2021 with the exception of two visits to Canada.

For all these reasons, the Court finds Respondent — Dalpio's — absences incredible and that she has not been primarily residing at the subject premises for the relevant time period.

Accordingly, after trial, Petitioner is awarded a final judgment of possession in its favor and against Respondents, Adriana Dalpio and undertenant, Charles Nasiff, and money judgment for $98,632.60 against Adriana Dalpio for all outstanding use and occupancy owed through November 30, 2025 with issuance of the warrant of eviction forthwith. However, execution of the warrant of eviction is stayed to July 31, 2026 for Respondents to vacate with dignity. The earliest execution date is August 3, 2026.

ORDERED: The clerk is to enter a possessory judgment against Respondents, Adriana Dalpio and undertenant, Charles Nasiff, with forthwith issuance of the warrant of eviction and execution of the warrant of eviction stayed to July 31, 2026 with earliest eviction date of August 3, 2026,

And further

ORDERED: The clerk is to enter a money judgment for $98,632.60 against Adriana Dalpio for all outstanding use and occupancy owed through November 30, 2025,

And further

ORDERED: Petitioner to forthwith serve a copy of this Decision and Order with Notice of Entry on Respondents,

And further

ORDERED: 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 is the decision and order of the Court, copies of which are being uploaded to

NYSCEF.

Dated: June 24, 2026

New York, NY

Frances A. Ortiz, J.H.C.

FOOTNOTES

1.   Petitioner's counsel asked the court to note that a "Deed of Trust" in New York State is really the equivalent of a mortgage not a deed.

2.    RSC §2523.5(b)(2) was recently amended and such language now appears in RSC §2523.5(b)(3).

3.   The Court takes judicial notice that the Covid-19 pandemic began in mid - March of 2020.

4.   This analysis is not meant to disparage a daughter's wish to spend time with her ailing father.

5.   California is a community property state. As such, all property real or personal acquired during the marriage and owned by either spouse is community property and presumed to be owned by each spouse equally. CA Fam Code § 760.

6.   This court is mindful that a tenant of a rent stabilized apartment who maintains a primary residence elsewhere, and also seeks to retain the stabilized apartment for convenience or for considerations of personal gain, is not one who is a victim of the housing crisis but may rather be said to be a contributing and exacerbating factor in the continuation of the critical shortage of affordable apartments. The aims of the Rent Stabilization Law are better served when such occupancy is discouraged by way of allowing a successful landlord to recover possession, after establishing the tenant's nonprimary use. Cier Indus. Co. v. Hessen, 136 AD2d 145 (1st Dep't 1988).

7.   Although Respondents during their testimony denied these claims made by Ms. Mvoume, this Court finds their denial incredible.

Frances A. Ortiz, J.