Tenant appeals from a final judgment of the Civil Court of the City of New York, New York County (Laurie L. Lau, J.), entered August 21, 2007, after a non-jury trial, which awarded possession to landlord in a holdover summary proceeding.
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This opinion is uncorrected and subject to revision before publication in the printed Miscellaneous Reports.
PRESENT: McKeon, P.J., Davis, Schoenfeld, JJ
Final judgment (Laurie L. Lau, J.), entered August 21, 2007, reversed, with $30 costs, and final judgment awarded to tenant dismissing the holdover petition.
Landlord seeks possession of the elderly, long-term tenant's stabilized apartment on the ground of nonprimary residence, based on allegations, as set forth in the notice of non-renewal, that the tenant was not living in the apartment from the summer of 2003 through the end of 2004. Although tenant acknowledged spending considerable time in Greece caring for her bedridden (now deceased) mother in 2003 and 2004, this circumstance in and of itself does not mandate a finding of nonprimary residence (see Lance Realty Co. v Fefferma, 5 Misc 3d 134[A], 2004 NY Slip Op 51479[U] ; Nussbaum Resources I, LLC v Gilmartin, 2003 NY Slip Op 50553[U] ; Kalimian v Holmberg, 2001 NY Slip Op 40297[U] ). The trial evidence established that while tenant temporarily relocated to care for her mother, she maintained an ongoing physical nexus to the subject apartment, returning for brief intervals, keeping her furniture and personal belongings in the apartment, and receiving mail there, including social security checks and financial statements. To the extent that evidence concerning tenant's whereabouts during the period subsequent to service of the notice of termination was properly considered (cf. Ascot Realty v Richstone, 10 AD3d 513 , lv dismissed 4 NY3d 842 ), tenant plausibly explained that her continued stay in Greece was attributable largely to her brother's subsequent illness and her own unfortunate accident, which undisputedly resulted in multiple fractures preventing her from walking. Considering the entire history of this 30-year tenancy (see 615 Co. v Mikeska, 75 NY2d 987 ) and exercising our authority to review the record developed at the non-jury trial (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 ), we conclude that tenant had a sufficient nexus to the apartment and did not abandon it as her primary residence. Thus, we reverse the possessory judgment awarded to landlord and dismiss the eviction proceeding.
Douglas E. McKeon, P.J. (concurring)
I write separately from my colleagues, correct as I believe they are, to contrast my views about this tenant's situation with those previously expressed in 542 East 12th Street LLC v. Lee, 18 Misc 3d 98 , in which I concluded that the avowed intention of the tenant therein to care for infirm parents was secondary to a design to permit her teenage daughter to remain alone in a rent stabilized apartment while the tenant relocated some 3,000 miles away.
This court has long recognized that a rent stabilized tenant may spend considerable periods of time away from a regulated apartment, caring for an infirm relative a great distance away, without "[mandating] a finding of nonprimary residence" (Kalimian v Holmberg, 2001 NY Slip Op 40297[U] ; see also Nussbaum Resources One, LLC v Gilmartin, 2003 NY Slip Op 50553[U] ). In my view, the test is one rooted in good faith and common sense. Merely making sure that parents take medicine the (dubious) explanation offered by the tenant in Lee to justify a 3,000 mile move to California, not to live in her parents' residence but elsewhere, was, even if credited, legally insufficient to permit a relocation for parental health reasons.
A tenant who wishes to spend considerable periods of time away from a stabilized apartment to care for an ailing parent should be prepared to justify such absences by establishing the medical condition of the parent and the health related reasons underlying the child's decision to act as a caregiver. At trial, the tenant herein (Ms. Houpouridou) met that burden, while the tenant in Lee did not. Ms. Houpouridou's mother was terminally ill and eventually passed away. Ms. Lee's parents lived independently and actually enjoyed an improvement in their health, at least according to Ms. Lee's trial testimony.
Ms. Houpouridou's circumstances were very much akin to the tenant in Kalimian. Both kept furnishings in their New York apartments and maintained bank accounts here; neither filed New York State or City income tax returns, apparently due to insufficient income during the relevant time period. On the other hand, the personal items left in her apartment and the New York bank account kept active by Ms. Lee were, so far as shown in that case, for the primary, if not exclusive use of her daughter.
Ms. Houpouridou never intended to abandon her New York home, nor did she act in a manner which suggested that she adopted Greece as her primary residence. Her absence from New York was motivated by her sense of familial duty, and her oversees stay was necessarily extended by her need to care for an ailing brother and her own unfortunate accident, which left her in a wheelchair for many months.
There was a time in many cultures when the care of a sick or elderly parent by a child was the hallmark of familial responsibility. But, according to that frequently uttered refrain, times change. Mothers or fathers, sometimes both, would often live under the same roof with their offsprings and the hands-on care provided would be substantial. To the outsider, considerable sacrifice seemed involved, but for the caregiver child, the care of mom and dad was the natural progression in life's journey: those who reared and raised, and gave life, would be comforted and looked after in the twilight of their own.
Sad to say, as with so many old-fashioned values, adherence dims with each new generation, and parental care in some instances has been reduced to an occasional call to a nurse's aide or an infrequent, obligatory visit to a nursing home. But there are those, undoubtedly dwindling in number, who remain students of the old school, staying true to basic traditions and still giving life to words now seldomly spoken: "my mother will never go to a nursing home." Ms. Houpouridou is one of those rare individuals and her heartfelt decision to travel to Greece to be ...