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Supreme Court, Appellate Term, New York,

Gerald KATZ et al., Respondents, v. Alex GELMAN, Also Known as Zinovy Gelman, Appellant.

Decided: May 20, 1998

Before PARNESS, J.P., and McCOOE and DAVIS, JJ. Chadbourne & Parke, L.L.P., New York City (Donald I. Strauber, Daniel E. Estrin and Richard B. Brosnick of counsel), for appellant.

Final judgment entered April 4, 1997 (Anne Katz, J.) reversed, with $30 costs, and final judgment granted in favor of tenant dismissing the holdover petition.

In this holdover proceeding, landlords seek possession of tenant's loft unit situated in an interim multiple dwelling upon the ground of nonprimary residence (see generally, Matter of Lower Manhattan Loft Tenants v. New York City Loft Board, 66 N.Y.2d 298, 496 N.Y.S.2d 979, 487 N.E.2d 889).   Tenant commenced occupancy in 1978 and, during the period November 1993 though August 1996, was institutionalized in various residential facilities for treatment of depression and substance abuse.   He was discharged prior to trial of the proceeding and resumed occupancy in the premises, albeit subsequent to service of the termination notice.

As noted by the trial court in its decision, the facts are not substantially in dispute.   We disagree, however, with the court's legal conclusion that the 41-year-old tenant relinquished the loft as his primary residence.   Unlike cases involving aged tenants confined in a nursing home facility who are unable to demonstrate an ability to return to the regulated premises (see L.J.M. Venture No. 1 v. Joy, 105 Misc.2d 291, 432 N.Y.S.2d 58;  65 Central Park West, Inc. v. Greenwald, 127 Misc.2d 547, 486 N.Y.S.2d 668), this tenant was residing in transitional homes designed to prepare patients for a return to independent living.   Indeed, the trial evidence indicates that tenant had already made a successful return to the loft-where his meager belongings always remained-without relapse.

Manifestly, tenant was precluded from maintaining “an ongoing, substantial, physical nexus with the controlled premises for actual living purposes” (Sommer v. Ann Turkel, Inc., 137 Misc.2d 7, 10, 522 N.Y.S.2d 765) during his involuntary absence for medical reasons.   We view this absence as excusable, for purposes of nonprimary residence, where the institutionalization was transitory, not permanent in nature;  where there was no abandonment of the premises or establishing of any new residence;  and where a resumption of occupancy has taken place (Cohen & Zerenowitz Realty Corp. v. Asero, N.Y.L.J., Nov. 21, 1991, at 26, col. 4 [App. Term, 1st Dept.];  Soybel v. Gruber, 136 Misc.2d 430, 518 N.Y.S.2d 920).

Since landlords did not meet their burden of proving that tenant does not occupy the loft as his primary residence, or maintains a primary residence at a place other than the subject premises (Sharp v. Melendez, 139 A.D.2d 262, 264, 531 N.Y.S.2d 554), the petition must be dismissed.   We note that landlords have not appeared on this appeal.