WHERE DOES A "HOMELESS" PERSON PRIMARILY RESIDE?

In TOA Construction Co., Inc v. Tsitsires, the Appellate Division, First Department, struggled with whether Michael Tsitsires maintained his apartment as his "primary residence," even though "mental illness" kept him from actually occupying the unit.

Tsitsires' landlord -- a "notorious slumlord" driven to "empty its building of all tenants" -- filed a case to evict Tsitsires from his "single-room occupancy" apartment since it wasn't the tenant's principal or "primary" home. The evidence established Tsitsires used this apartment as only a mail drop and storage space, he didn't keep a key, and that his long-time girlfriend -- Alberta Lang -- used the apartment for showers and storage of her own belongings.

While the unit was described as "uninhabitable," that wasn't the dispute's central focus. The New York County Civil Court was compelled to find in the landlord's favor since Tsitsires hadn't maintained the apartment as his "primary residence." (The tenant's mental illness didn't excuse his physical absence.)

On appeal, the Appellate Term, First Department, expressed discomfort condemning a man to homelessness and reversed. ("[P]ublic policy concerns do not require us to sustain the needless eviction of this seriously disturbed tenant, upon what in essence would be a judicial finding that tenant maintains his primary residence on a park bench.")  

When the dispute reached the Appellate Division, First Department, it sided with the Civil Court.

While Tsitsires didn't maintain another residence (as he preferred to sleep in Central Park or on local stoops), his "lifestyle choice" wasn't a dispositive consideration as a regulated tenant is required to maintain an "ongoing, substantial, physical nexus [with the regulated unit] ... for actual living purposes."

Although cases have excused "temporary" absences, a tenant must demonstrate an intention "to return to and reside in the apartment as soon as practicable." Tsitsires wasn't able to supply any evidence that he could, or would, return to the apartment particularly since he declined medical treatment for his condition.

While "sympathetic" to his "plight," the majority was steadfast in its conviction that Tsitsires had "abandoned" his apartment and was properly subject to eviction.

In a heated dissent, two justices of the AD1 felt the Civil Court's analysis was "seriously flawed and riddled with significant misstatements of fact."

The dissenters were of the opinion the trial court relied a bit too heavily on the testimony of a former building manager who never saw Tsitsires enter or exit the apartment. They believed the Civil Court hadn't considered that Tsitsires and his girlfriend "kept very irregular hours," that Tsitsires often waited in the lobby before going up to his unit for fear of seeing other building occupants, and that his girlfriend (Ms. Lang) used the apartment "on a continual basis."

Relying on the manager's characterization of Tsitsires' "homeless lifestyle," the Civil Court supposedly discounted Tsitsires' testimony he spent 7-8 months a year in his apartment and that his absences were seasonally related since apartment wiring didn't support air conditioning and the heat often wasn't working.

The dissenters also questioned the majority's reliance on Tsitsires' failure to accept medical treatment as the basis for his refusal to return to the apartment when, perhaps, the reason was the unit's uninhabitable condition. (They also objected to the lack of any evidence that Tsitsires "exceeded the 183-day period of unexplained absence permitted by the applicable statute.")

Life has certainly proven to be like a box of chocolates for this particular tenant.

Will Tsitsires take his tsuris to the Court of Appeals?

To download a copy of the Appellate Division's decision, please use this link: TOA Construction Co. Inc. v. Tsitsires (AD)

To download a copy of the Appellate Term's decision, please use this link: TOA Construction Co., Inc. v. Tsitsires (AT)

To download a copy of the Civil Court's decision, please use this link: TOA Construction Co., Inc. v. Tsitsires (Civil Court)