In DNY* * * v H, dispute arose whether the tenant, EH, used her rent-stabilized apartment in New York as her primary residence. The landlord, DNY sought possession of the apartment in a holdover proceeding, arguing that Hammer was absent for extended periods and resided elsewhere.
After a nonjury trial, the Civil Court ruled in the landlord's favor, awarding possession of the apartment. The court found that EH had not maintained the unit as her primary residence during the relevant time. Specifically, evidence showed that she had spent over 75% of the two-year period before her lease expired living at her daughter's home in Arizona. Even when considering her absence due to the COVID-19 pandemic, she had been away for nearly uninterrupted periods between December 2018 and March 2020, returning only briefly.
Additional factors supported the court’s ruling: Hammer had a doctor and dentist in Arizona, an Arizona-area cell phone number, and her niece had occupied the apartment for several months. She failed to present key documentary evidence linking her to the New York residence. The court determined that Hammer’s explanations did not overcome the weight of the facts against her claim.
On appeal, the Appellate Term, First Department, affirmed the trial court's decision, concluding that the lower court’s findings were reasonable and based on fair interpretation of the evidence. While acknowledging Hammer's long tenancy, the AT ruled that "past history does not entitle a tenant to a rent-stabilized apartment they no longer use as their primary home."
It further noted that request for further relief on staying the eviction would need to be presented to the court below.
Man, that sure got prickly ....
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DECISION