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Supreme Court, Appellate Division, First Department, New York.

IN RE: WELL DONE REALTY, LLC, Petitioner-Respondent, v. Benjamin EPPS, et al., Respondents-Appellants.


Decided: November 12, 2019

Acosta, P.J., Renwick, Manzanet–Daniels, Singh, JJ. Thomas S. Fleishell & Associates, P.C., New York (Thomas S. Fleishell of counsel), for appellants. Kossoff, PLLC, New York (Steven Y. Steinhart of counsel), for respondent.

Order, Appellate Term, of the Supreme Court, First Department, entered February 28, 2018, which in this non-primary residence holdover proceeding affirmed the judgment of Civil Court, New York County (Jean T. Schneider, J.), entered February 7, 2017, upon a prior order granting landlord's motion for summary judgment, awarding landlord possession of the subject premises, unanimously affirmed, without costs.

Section 2524.4(c)of the Rent Stabilization Code allows a landlord to refuse to renew a stabilized tenant's lease if the tenant does not occupy the premises as his or her primary residence. The courts have interpreted “primary residence” to mean an “ongoing, substantial, physical nexus with the controlled premises for actual living purposes” (Berwick Land Corp. v. Mucelli, 249 A.D.2d 18, 18, 671 N.Y.S.2d 44 [1st Dept. 1998] [internal quotation marks and citations omitted]; East End Temple v. Silverman, 199 A.D.2d 94, 94, 605 N.Y.S.2d 56 [1st Dept. 1993]). Based on the tenants' admitted vacatur of the subject premises in 2003, landlord established its prima facie entitlement to summary judgment against them based on their non-primary residence.

Respondent Sue Monroe, who admittedly resided in the apartment with her daughter and her husband since “mid–2001,” failed to sustain her burden of proving that she resided with the tenants of record in the apartment as her primary residence for a period of no less than two years prior to respondents Benjamin Epps and Amy Monroe–Epps (tenants) permanently vacating the apartment (see Rent Stabilization Code [9 NYCRR] § 2523.5[b]; Third Lenox Terrace Assoc. v. Edwards, 91 A.D.3d 532, 533, 937 N.Y.S.2d 41 [1st Dept. 2012]; 68-74 Thompson Realty, LLC v. McNally, 71 A.D.3d 411, 412, 896 N.Y.S.2d 323 [1st Dept. 2010], lv dismissed 12 N.Y.3d 813, 881 N.Y.S.2d 20, 908 N.E.2d 928 [2009]). Although the apartment was no longer the tenant's primary residence after 2003, the tenants, having continued to pay the rent and execute renewal leases extending through September 2015, cannot be found to have permanently vacated the apartment at any time prior to the expiration of the last lease renewal on September 30, 2015 (see East 96th St. Co., LLC v. Santos, 13 Misc.3d 133(A), 2006 WL 2975965 [App. Term, 1st Dept. 2006]). Given the tenants' continued involvement with the subject premises, “it does not avail respondents that the predecessor owner may have known of their presence in the apartment or accepted an unspecified number of rent payments on behalf of respondent” (PS 157 Lofts LLC v. Austin, 42 Misc.3d 132(A), 2013 N.Y. Slip Op. 52241(U), 984 N.Y.S.2d 634 [App. Term, 1st Dept. 2013], appeal dismissed 25 N.Y.3d 1186, 16 N.Y.S.3d 45, 37 N.E.3d 102 [2015]).