Civil Court of the City of New York, New York CountyJun 24, 2008
065396/06 (N.Y. Misc. 2008)
065396/062008 N.Y. Slip Op. 51249


Decided June 24, 2008.

Law Offices of Santo Golino, Garden City (Santo Golino Hollis B. DeLeonardo of counsel), for petitioner.

Thomas E. Berinato, Kew Gardens, for respondent. Gerald Lebovits, J.

In this holdover proceeding, petitioner, 1234 Broadway, LLC, alleges that respondent, Jing Wu Chen, failed to maintain Unit 600-1 at 38 West 31st Street in New York County as his primary residence.

This is the second holdover proceeding against Chen for the subject New York County premises. Chen was first served with a 30-day termination notice on March 1, 2005, terminating his month-to-month single-room-occupancy (SRO) rent-stabilized tenancy on the alleged ground that his apartment is not his primary residence. That nonprimary residence proceeding was dismissed on procedural grounds. After that proceeding was dismissed, petitioner served Chen on January 11, 2006, with another 30-day termination notice. Petitioner now moves for summary judgment. Petitioner's motion is denied because material issues of facts are in dispute.

Petitioner also moves to strike respondent's affirmative defenses and counterclaims. The motion to strike is granted without opposition.

The movant on a motion for summary judgment bears the burden of setting forth admissible facts to establish a prima facie showing of an entitlement to a judgment as a matter of law. ( Winegrad v NY Univ. Med Ctr., 64 NY2d 851, 853 [1985 mem], citing Zuckerman v City of NY, 49 NY2d 557, 562.) The movant must show that no material issues of fact exist. ( Id.) Summary judgment should be granted only when a defense or cause of action is sufficiently established to warrant the court to direct judgment as a matter of law. (CPLR 3212 [b].) Chen's occupancy after being served with the 2005 termination notice is not in dispute. He offers federal income-tax returns, bank statements, and other documents dating from April 2005 to establish the subject New York County premises as his primary residence.

Chen asks this court to consider the entire history of his tenancy, including the time after he was served with the 2005 termination notice, to prove that the subject New York County premises is his primary residence. The court may not do so. Evidence that post-dates the 2005 termination notice is irrelevant to determine primary residency.

In evaluating primary residency, courts must look to the entire history of the tenancy during the lease term "to the time of renewal." ( 615 Company v Mikasa, 75 NY2d 987, 988 [1990 mem].) The time during which a tenant attempts to cure nonprimary residence is excluded from that evaluation. ( See 45th St. Assocs. v Spence, 180 Misc 2d 93, 94 [App Term 1st Dept 1999 per curiam] [refusing to consider tenant's attempt to re-establish her residency at the subject premises in evaluating primary residence].) As the Civil Court explained in Lufkin v Drago, "[i]t was . . . not the intent of the Legislature, in exempting apartments not used as a primary residence, to give the nonprimary tenant the opportunity to periodically pose as a primary resident, only to conveniently revert to the status of a nonprimary resident during the overwhelming balance of the lease term." ( 126 Misc 2d 177, 179 [Hous Part, Civ Ct, NY County 1984], affd 129 Misc 2d 1108 [App Term 1st Dept 1985 per curiam]; accord 1330 Third Ave. Corp. v Parravicini, NYLJ, Oct. 27, 1986, at 13, col 5 [App Term, 1st Dept per curiam] ["[T]he relevant period of inquiry regarding tenant's alleged non-primary residence is the period prior to the inception of the administrative proceedings."].) Primary residency will be evaluated by excluding any time Chen spent at his subject New York County premises after the 2005 termination notice was served. The time after that service might be Chen's attempt to cure petitioner's nonprimary residency allegation.

The remaining issue is whether Chen was a primary resident at the subject New York County premises during the years before he was served with the 2005 termination notice.

In evaluating whether a period is sufficient to qualify as primary residency, Rent Stabilization Code (9 NYCRR) § 2520.6 (u) provides:

Primary residence. Although no single factor shall be solely determinative, evidence which may be considered in determining whether a housing accommodation subject to this Code is occupied as a primary residence shall include, without limitation, such factors as listed below:

(1) specification by an occupant of an address other than such housing accommodation as a place of residence on any tax return, motor vehicle registration, driver's license or other document filed with a public agency;

(2) use by occupant of an address other than such housing accommodation as a voting address;

(3) occupancy of the housing accommodation for an aggregate of less than 183 days in the most recent calendar year, except for temporary periods of relocation pursuant to section 2523.5(b)(2) of this Title; and (4) subletting of the housing accommodation.

According to petitioner, Chen bought a house in 1991 with his ex-wife at 68-40 Manse Street, Forest Hills, New York. Petitioner submits on this motion proof that Chen noted his Forest Hills address on his 2003 federal income-tax return; on his bank statements from 1995 to 2005; on a 2006 Social Security benefit statement; and on his cardholder information on file with the Metropolitan Transportation Authority (MTA). Additionally, petitioner offers proof that Chen gave the MTA on his cardholder information a daytime phone number corresponding to his Forest Hills address.

Petitioner alleges that respondents Bo Yu and Bob Hou have occupied and possibly continue to occupy the subject New York County premises. An affidavit from Alfred Sabetfard states that Chen no longer lived in the subject New York County premises as of late 2004 to early 2005. Sabetfard maintains an office in the building that houses the subject New York County apartment. Sabetfard's affidavit asserts that Hou identified himself to Sabetfard as the occupant of the subject New York County premises from late 2004 to early 2005 and that he gave Sabetfard's office a letter stating that his current monthly rent is $480.00.

In response, Chen submits a letter from Hou, written in a foreign language but translated to English, asserting that Chen has lived at the subject New York County premises for over 20 years and that Hou stayed there for only a few months. Additionally, Chen submits a letter from Yu claiming that Yu lived at the subject New York County premises only temporarily and a letter from Lin Hua, a neighbor, claiming that she has seen Chen in the lobby and elevator of the subject New York County premises for the past seven years. Yu's, Hou's, and Hua's letters are not sworn-to affidavits. Because the letters are inadmissable, the court may not consider them. ( See e.g. Rue v Stokes, 191 AD2d 245, 246 [1st Dept 1993 mem] [reversing Supreme Court's denial of summary judgment because unsworn letters "may not be considered in opposition to motion for summary judgment"].)

In further opposition to petitioner's motion for summary judgment, Chen contends in an affidavit that he resided at his subject New York County premises over 50 percent of his time in the years before he was served with the 2005 termination notice, even though he bought a house in Forest Hills in 1991. He claims he arranged for documents to be mailed to his Forest Hills address because he feared that his mail might be stolen from his New York County apartment.

Testimony is sufficient to raise issues of fact and establish a defense so as to preclude summary judgment. ( E.g. Dollas v W.R. Grace Co., 225 AD2d 319, 321 [1st Dept 1996 mem] [noting that "any apparent discrepancy between the testimony and the evidence of record goes only to the weight and not the admissibility of the testimony"]; Harris v City of NY, 147 AD2d 186, 189 [1st Dept 1989 mem] [denying summary judgment because plaintiff's deposition testimony established issues of fact that must be accepted as true].) A conflict between allegations and documentary evidence "presents an issue of credibility for resolution at trial." ( Dollas, 225 AD2d at 321 [finding plaintiff's deposition testimony sufficient to deny summary judgment despite evidence that contradicts the testimony]; St. Owner LP v Bonczek, 19 Misc 3d 1139[A], 2007 NY Slip Op 52556[U], *5, 2007 WL 5211171, 2007 NY Misc LEXIS 8991, *12-13 [Hous Part, Civ Ct, NY County 2007] [relying on testimony to establish tenant's claim of primary residence even though documentary evidence admitted at trial suggested that tenant resided elsewhere].)

To support granting summary judgment, petitioner cites 72A Realty Assocs. v Czeresnia (NYLJ, Feb. 2, 1995, at 27, col 5 [App Term, 1st Dept per curiam]; see also Holy Spirit Assn. for the Unification of World Christianity v Kwak, NYLJ, July 31, 2002, at 19, col 1 [Hous Part, Civ Ct, NY County] ["It is incumbent upon a party who opposes a motion for summary judgment to assemble and lay bare his proofs, and show by evidentiary facts the existence of real defenses which can be established at trial."]). Summary judgment may be granted in a landlord's favor in a nonprimary-residence proceeding when overwhelming evidence proves that the tenant did not reside at the subject premises during the Golub period. In 72A Realty Associates, however, the Appellate Term affirmed the grant of summary judgment, not only because of the overwhelming evidence, but also because the tenant failed to show the existence of any real defense. Although the Appellate Term relied on the tenant's failure to produce documentary evidence in opposition to the landlord's motion, the court further relied on the tenant's "evasive" affidavit, which gave no details about the extent of his residency. In this case, Chen's affidavit is sufficiently particular to establish real defenses and preclude summary judgment.

A material dispute exists about whether Chen resided in the subject New York County premises during the years before he was served with the 2005 termination notice. Chen maintains he lived there for over 50 percent of his time before 2005 and that he arranged for documents to be sent to his Forest Hills address only because he worried that his mail would be stolen. Because Chen's testimony is sufficiently specific to raise issues of material fact, the issue of credibility cannot be determined on the papers. ( See e.g. Auble v Doyle , 38 AD3d 1264 , 1265-66 [4th Dept 2007 mem] [reversing Supreme Court's grant of summary judgment because court may not consider issues of credibility on papers alone].)

Petitioner's motion for summary judgment is denied. This proceeding is adjourned for trial to July 17, 2008.

This opinion is the court's decision and order.