409-411 Sixth Street, LLC, Appellant,v.Masako Mogi, Respondent.BriefN.Y.October 8, 2013 REPLY (Pursuant to Rule 500.11[e]) August 8, 2013 RE: 409-411 Sixth Street, LLC v. Mogi APL –2013-00125 Petitioner-appellant, 409-413 East 6th Associates LLC, f/k/a July 15 Real Estate LLC, the successor-in-interest to 409-411 Sixth Street, LLC (“Appellant” or “Owner”), respectfully replies herein to the Rule 500.11 letter brief of Respondent, Masako Mogi (“Respondent”), dated July 24, 2013, in the within proceeding. Leave of court has been requested for consideration and filing of this submission pursuant to Rule 500.11(e). I. This Appeal Should be Heard Upon a Full Briefing At p. 2 of Respondent’s letter brief, Respondent erroneously maintains that the issue of the appropriate scope of appellate review of trial court judgments (which have already been reviewed and affirmed by an intervening appellate court) was sufficiently briefed below, such that another full briefing is not warranted. While most certainly, the parties gave full accounts in their respective Appellate Division briefs as to whether the preponderance of the evidence adduced at trial supported the trial court’s final judgment, the question that arose only after the Appellate Division ruled was never addressed by the parties. That question was sharply articulated by the dissent in the opening paragraph of its dissenting memorandum; to wit: As a threshold issue, the majority has applied an incorrect standard of review in holding…that “the landlord has not established by preponderant evidence” that the tenant did not use the subject apartment as her primary residence. The generally accepted standard for appellate review in a nonprimary residence action is whether “it is obvious that the [fact-finding] court’s conclusion could not be reached under any fair interpretation of the evidence.” [Citations omitted.] Here, the majority’s analysis does not depend on showing why it is obvious that “any fair interpretation of the evidence” cannot lead to the determination reached by Civil Court and affirmed by Appellate Term. Instead, it simply substitutes its own different interpretation of evidence… . -2- App. Div. Order on appeal, entered October 2, 2012, at p. 21 (emphasis in original.) Arguments concerning the Appellate Division majority’s substitution of its own different interpretation of the evidence clearly could not have been briefed below as the majority’s opinion did not exist at the time the briefs were written. This exceptional standard of review adopted by the Appellate Division majority is quite different from the general standard of review that the parties discussed in their Appellate Division briefs. Respondent tries to diminish the aberrance of what the majority did here by characterizing it as simply routine. Appellant respectfully submits that it is not routine or consistent with precedent of this Court. II. Respondent Discusses Only a Small Portion of Appellant’s Case At p. 4 of Respondent’s letter brief, Respondent substantially understates Appellant’s case. Respondent points to only three out of well over 15 different forms of substantial demonstrable evidence of Respondent’s non-primary residence in New York, contained in the record. Appellant’s evidence is fully set forth at pp. 6-17 of Appellant’s brief to the Appellate Division. Further, the imbalance in the evidentiary showing is graphically set forth at p. 22 of the brief, where the Court can readily see the paucity of proof that Respondent put forth in support of her claim, in contrast with the abundance and variety of evidence that Appellant presented. Evidence, such as Respondent’s Vermont house and car, which she admittedly shared with her long-time companion, who admittedly lived in Vermont year-round, combined with Respondent’s Vermont driver’s license, Vermont motor vehicle registration and insurance, Vermont utility accounts, Vermont ATM transactions, Vermont credit card transactions, and receipt of mail in Vermont, firmly established Respondent’s out-of-state connection. This was not, as the majority and Respondent dismissively say, “easily explainable”, “extremely thin,” or “non-probative” of a change in primary residency. This evidence was viewed by the trial court and the Appellate Term in conjunction with other evidence (such as de minimis electrical and zero gas consumption in the New York Apartment, the failure to file any NYS resident income tax return, producing a federal tax return for only one [2004] of the three operative years in question, reflecting use of the regulated Apartment as a partial tax deduction, and the absence of full-time employment in New York) to conclude that the regulated Apartment was not being maintained as Respondent’s primary residence. This conclusion was amply supported by the totality of the demonstrable, probative evidence in the record. -3- This conclusion could certainly be reached under the fair interpretation of the evidence – the standard that the Appellate Division majority should have applied. It should also be noted that contrary to Respondent’s characterization, the trial court did not negate the proof of the “well-below average” electrical consumption in the New York Apartment. The trial court’s statement that the electrical consumption evidence was “unpersuasive” was due to the acknowledgment that “Ms. Mogi does not occupy the New York City apartment full time.” (P. 3 of Civil Court Amended Decision, dated August 8, 2008.) Moreover, tellingly, Respondent’s retort to the Appellate Term’s finding that the low electrical and zero gas consumption during the relevant timeframe was incompatible with someone actually using an apartment for normal day-to-day living purposes, is to claim that Respondent’s usage is merely a statistical outlier. Such “explanation” cannot seriously be sufficient to reverse the trial court’s and Appellate Term’s determinations. III. The Credit Card and ATM Transactions Respondent spends considerable time in the letter brief attacking the import of the credit card and ATM evidence. Respondent points out that Respondent’s companion allegedly had access to those accounts, but neither Respondent nor her companion ever testified which, if any, of the transactions itemized in the bank and credit card records were made by the companion. The argument, in short, is one that tries to cast doubt upon the evidence with no substance. Moreover, as noted, the credit card and ATM evidence was not the exclusive evidence submitted by Appellant to establish Respondent’s residential whereabouts. Although the evidence showed significant contacts outside of New York (much more than the amount that Respondent calculates in her letter brief; the Court is respectfully referred to the charts in Appellant’s letter brief which accurately reflects the record evidence), this evidence was certainly never represented to be dispositive of the primary residence question. However, it certainly was relevant under the totality of all the circumstances before the court. Respondent did not show that the trial court’s and the Appellate Term’s conclusion, relying only in part on this evidence, could not be reached under any fair interpretation of said evidence. IV. Rebuttal to Respondent’s Testimonial Evidence Respondent’s counsel notes that the Appellate Division majority found that Appellant “failed to produce any witness who lived or worked in the New York -4- apartment building during the relevant time period to rebut the Appellant’s witnesses’ testimony.” Though Appellant did have a rebuttal witness, Ms. Kunda, who testified being told by Respondent’s friend that packages should be sent to Vermont because Respondent was not in New York at the time (see p. 7 of Appellant’s main submission), there are two cogent reasons for Appellant’s action. First, as observed by the dissent, Respondent’s witnesses were overly vague and indefinite, such that a rebuttal was not needed (if one was available). One witness, who resided in the building, went so far as to testify that Appellant was never out of the witnesses’ “purview” – an implausible contention (R. 236). Such form of testimony is legally insufficient and incredulous. In fact, the trial court noted that “none [of Respondent’s witnesses] had any detailed knowledge of when she was in New York and when she was in Vermont” (R. 6). Second, the subject building has no doorman and no full-time superintendent. Therefore, other than obtaining the testimony of other tenants (which is virtually impossible to obtain in possessory proceedings), Appellant had no reliable source of rebuttal witnesses. To accept the reasoning of the Appellate Division majority would mean that in a non-primary residence proceeding, essentially the only way an owner could rebut tenant testimony in a non-doorman building would be to monitor the entranceway to a tenant’s apartment by video surveillance 24 hours a day/7 days a week/ for two years. Such invasive surveillance is an onerous undertaking for an owner and, no doubt, viewed by many as an undue invasion of the tenant’s privacy. Surely, the majority should not be imposing such an extreme evidentiary burden for refuting a tenant’s general claim that she primarily resides in a regulated apartment despite, inter alia, (a) minimal utility consumption; (2) no NY tax returns filed for the relevant time frame; and (3) documentary indicia of an out-of- state residence and significant on-going contacts there. CONCLUSION There is no meaningful denial by Respondent that the majority’s holding has significantly altered the way appellate courts review findings of fact by lower courts in fact-intensive nonprimary residence proceedings. The need for there to be clear evidentiary guidelines in non-primary residence proceedings is critical for both, owners and tenants, of rent regulated housing. -5- Thus, for all the foregoing reasons, as well as those stated in Appellant’s main letter brief, coupled with the force of the dissenting opinion by two justices of the Appellate Division, this appeal should proceed in the normal course for a full briefing and oral argument. However, should the Court elect to make its determination solely on the letter submissions, Owner urges that the question posed by the Appellate Division in its order granting leave to appeal to this Court (i.e., “Was the order of t[he Appellate Division], which reversed the order of the Appellate Term…, properly made?”) must be answered in the negative. Respectfully submitted, Belkin Burden Wenig & Goldman, LLP Attorneys for Appellant 270 Madison Avenue New York, NY 10016 212-867-4466 BY:___________________________ Magda L. Cruz, Esq. MCRUZ/6313.0901/1191771