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Where does a "homeless" person primarily reside?

That was one of the questions addressed by the New York County Civil Court in the case of TOA Constr. Co., Inc. v. Tsitsires.  Since the tenant disliked the regulated unit, and preferred to live "on the streets," or at his friends' homes, the Housing Court Judge was of the opinion that the tenant failed to demonstrate an "ongoing, substantial, physical nexus with the [stabilized] premises for actual living purposes."  As the Housing Court noted in an 18-page, post-trial decision:

The court finds that petitioner met its burden of proof to show that respondent did not use the apartment as his primary residence or for actual living purposes during the Golub period. He maintained a homeless lifestyle likely caused, one psychiatrist explained, by substance abuse. Another psychiatrist stated that he is claustrophobic and hates his apartment.

The court also finds that petitioner need not prove that respondent lived at an alternative address during the Golub period. It is enough that petitioner proved that respondent abandoned the apartment to live on the streets, in the park, on stoops, and at his friends' homes. The Legislature's objective of protecting the housing stock will not be advanced by allowing respondent to use the subject apartment as he did only to store his belongings, receive mail, and let his girlfriend shower.

Condemning the regulated tenant to a life on the streets was an unpalatable outcome for the Appellate Term, First Department, which reversed and dismissed the nonprimary-residence holdover case.  In a decision dated December 20, 2006, the AT asserted that "public policy concerns" did not support the eviction of a "seriously disturbed tenant" and that an affirmance of the trial court's judgment would "in essence be a judicial finding that tenant maintains his primary residence on a park bench."

"The facts are what they are."

In a cogent dissent, Justice William P. McCooe found the trial court's decision to be "well reasoned" and consistent with existing law.  He further concluded as follows:

The subject premises are not the tenant's primary residence because he does not use it for actual living purposes, only storage. His girlfriend uses it to shower and she keeps the only key. He has lived on the street for many years. Based upon his long-term psychiatric history and refusal to take medication, there is no claim or indication that he intends to return to the premises for actual living purposes.

In view of the dissent, this case will likely be appealed to the Appellate Division, First Department.  If the law were applied as written, the AT's decision would be reversed for the reasons noted by the trial judge and the dissenter.  But, we think it is much more likely that the AD will not wish to touch this political "hot potato" with a ten-foot pole and will allow the dismissal to stand.  (How likely is it that the AD will want to be perceived as relegating a troubled man to a life of homelessness?)

Any wagers?

For a copy of the Appellate Term's decision in TOA Constr. Co., Inc. v. Tsitsires, please click on the following link: http://www.nycourts.gov/reporter/3dseries/2006/2006_26509.htm

For a copy of the underlying Civil Court decision, please click on the following link: http://www.nycourts.gov/reporter/3dseries/2005/2005_25268.htm