Whether or not regulated tenants actually reside in their units is a battle regularly waged in landlord-tenant disputes.
If a tenant is suspected of principally living "elsewhere," a landlord is free to refuse to renew an expiring lease and may serve a "notice of non-renewal," terminating the tenancy on the basis of non-primary residency.
While trial judges are given considerable latitude when it comes to discerning credibility of witnesses and weighing the evidence presented, that discretion is not unfettered. If the documents and the testimony of others suggest that the tenant is not living in the unit in question, a tenant can still lose the case, even if the tenant's recitation of the events is found to be completely believable. In fact, that's how Terence and Jane Gordon lost their one-bedroom walk-up on Carmine Street (in Greenwich Village).
Jane moved into the apartment at 57 Carmine Street back in 1978. In 1982, she was joined by Terence (with the couple marrying the following year). And, in 1988, the couple's son was born.
in 1991, both Jane and Terence signed a lease for a two-bedroom apartment in Stuyvesant Town, and it was the Gordons's testimony that they maintained separate residences due to the "rocky" nature of their relationship. While spouses are permitted to maintain separate regulated residences, they must maintain an appropriate nexus to their respective units demonstrable in a variety ways.*
A judge of the Housing Part of the Civil Court of the City New York, found the testimony to be "frank, forthcoming and credible," and ultimately found in Jane's favor and ended the landlord's eviction proceeding. On appeal, the Appellate Term, First Department , deferred to the trial judge's credibility findings and interpretation of the evidence and affirmed the case's dismissal.
And even though the couple's documents -- like tax returns -- listed the Stuyvesant Town unit as their joint place of residence, the AT1 found the tenants' explanation (that Terence maintained control of the financial records and accounts and thus the reason for the use of the Stuyvesant Town address) to be "plausible."
Things got particularly charged when the case reached the Appellate Division, First Department . There, the appellate panel wasn't buying any of the discrepancies that had been explained-away by the testimony.
The AD1, persuaded by the "probative documentary evidence and disinterested testimony," was left with the conclusion that Jane didn't really live in the Carmine Street apartment. Here's the stuff the AD1 found compelling:
Landlord placed in evidence the Gordons' 1998 federal and state joint income tax returns, which state that the Stuyvesant Town apartment was the home address of both individuals, and a September 2000 bank statement addressed to both Gordons at the Stuyvesant Town apartment. Landlord also presented Consolidated Edison records and the trial testimony of a Consolidated Edison representative establishing, without contradiction, that there was negligible use of electricity in the Village apartment for more than a year prior to the commencement of this proceeding, including four months (October 1999 through January 2000) in which the apartment used no electricity at all. Landlord also called the tenant of the apartment across the hall from the subject apartment (the only other tenant on the floor), who testified that for about a year and a half after he moved into his apartment in October 1999 he never saw anyone enter or leave the subject apartment, nor did he hear any sound coming from the apartment.
The AD1 found that "negligible use of electricity" for the one-year period preceding the case's commencement to be "most persuasive," particularly since Jane was unable to give a "satisfactory explanation" for that discrepancy.
In an additional (and unnecessary) twist, the AD1 was also taken aback by the couple's failure to present the testimony of their then 15-year old son at the time of trial. In fact, the court applied an "adverse inference" that the child's testimony was going to be unfavorable and that was the reason he was not called.
This latter analysis threw us for a loop.
Why is an "infant's" testimony necessary or pertinent to a nonprimary residence case? And, why assume the reluctance to have a child appear was because the testimony was going to be unfavorable?
Is it not possible that the Gordons wished to spare their young son the stress and anxiety of having to speak in open court?
We don't think an adverse inference was appropriately applied in this instance. Since all the other evidence was sufficient to defeat the tenants' claim, why electrify things by challenging the couple's election to shelter their child from possible harm?
For a copy of the Appellate Term's decision, please use this link: Carmine Ltd. v. Gordon (Appellate Term)
For a copy of the Appellate Division's decision, please use this link: Carmine Ltd. v. Gordon (Appellate Division)
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*For our other posts on this topic, please click this link: Nonprimary Residence