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Chelsmore Apts. v. Garcia

Other Lower Courts

November 5, 2001

Chelsmore Apts., L. L. C., Petitioner,
v.
Rafael Garcia et al., Respondents.

COUNSEL

Kossoff Alper & Unger, New York City (Sally Unger of counsel), for petitioner.

Peter J. Pruzan, New York City, for respondents.

OPINION

Shlomo S. Hagler, J.

Petitioner Chelsmore Apts., L. L. C. (Chelsmore or petitioner)

Page 543

commenced this holdover proceeding to recover possession of rent-controlled apartment B located at 205 West 15th Street, New York, New York (subject premises), on the ground that the respondents do not occupy the subject premises as their primary residence. Respondents Lillian N. Medina, Rafael Garcia and Carlos Herreros (Medina, Garcia, Herreros, or respondents) interposed a joint written answer asserting, inter alia, that Medina and Garcia occupy the subject premises as their primary residence; and Herreros would be entitled to succession rights, if any.

Trial

This proceeding was referred to this court for trial. The trial commenced on May 7, 2001 and continued over the course of 16 days until this matter was marked submitted on October 5, 2001.

Issues

Do respondents primarily reside at the subject premises or at alternate addresses located in the " Alicante region of Spain and/or 1596 Farnsworth Avenue, Malabar, FL 32901 and/or 4149 Bayberry Drive, Melbourne, FL 32901 and/or 1000 River Road, Teaneck, NJ 07666" ? See " Thirty (30) Day Notice of Termination and Notice of Intention to Commence a Proceeding to Recover Possession Based Upon Non-Primary Residence" dated February 25, 2000; and

Do respondents " underutilize" the subject premises by virtue of their constant travel for both professional and personal reasons?

Burden of Proof

A landlord may recover a rent-controlled apartment which is " not occupied by the tenant, not including subtenants or occupants, as his [or her] primary residence, as determined by a court of competent jurisdiction." (See 9 NYCRR 2200.2 [f] [18].) Primary residence has been defined as an " ongoing, substantial, physical nexus with the controlled premises for actual living purposes--which can be demonstrated by objective, empirical evidence." (See Emay Props. Corp. v Norton,136 Misc.2d 127, 129 [App Term, 1st Dept 1987]; see also, ...


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