Petitioner appeals from an order of the Appellate Term of the Supreme Court of the State of New York, First Department, entered December 28, 2007, affirming (1) an order of the Civil Court, New York County (Kevin C. McClanahan, J.), entered December 22, 2005, after a non-jury trial, which dismissed the petition in a primary holdover proceeding, and (2) an order of the same court and Judge, entered on or about March 27, 2006, which denied petitioner's motion to vacate the attorneys' fees award, and modified a judgment of the same court and Judge, entered March 2, 2006, to the extent of reducing such fees.
The opinion of the court was delivered by: Tom, J.P.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Peter Tom, J.P., David Friedman, James M. Catterson, Karla Moskowitz, Dianne T. Renwick, JJ.
Respondent tenant's relocation to California for a period of nearly two years to care for her elderly parents constitutes a reasonable ground for her temporary absence from her rent-stabilized apartment, supporting Civil Court's decision that the premises continued to be maintained as tenant's primary residence. In view of the liberal discovery available in a nonprimary residence proceeding, petitioner landlord had the means to seek relevant proof regarding tenant's parents' infirmities, and the absence of such evidence is not a basis for disturbing the court's findings.
Tenant Charlene Lee occupies the subject apartment under a rent-stabilized lease entered into in September 1997 and periodically renewed thereafter. By timely notice, landlord terminated the tenancy effective October 31, 2002 on the ground that tenant had relocated to California, that she occupied the apartment less than 180 days a year and that her daughter, Cindy, was occupying the premises. When tenant failed to surrender possession, this holdover proceeding ensued. In her answer, tenant denied landlord's allegations, asserted that Cindy was entitled to succession rights and sought attorneys' fees. Landlord conducted examinations before trial of both occupants of the apartment, during which tenant explained that she went to California to care for her ailing parents and that her daughter remained in the apartment to complete her studies at Stuyvesant High School, from which she graduated in 2003.
After trial, Civil Court dismissed the petition and awarded tenant attorneys' fees, finding that the evidence established that tenant had an ongoing substantial physical nexus to the New York apartment and a valid reason for her temporary relocation that did not, in and of itself, mandate a finding of nonprimary residence.
Landlord appealed to Appellate Term from the order issued after trial, the judgment on legal fees and the denial of landlord's motion for a new hearing on fees. Appellate Term affirmed the dismissal of the holdover proceeding and modified the fee award, revising it downward to $34,053 without elaboration (18 Misc 3d 98 ). A dissenting Justice expressed dismay that tenant had left Cindy alone in New York, finding tenant's explanation for her absence from the premises to be pretextual and undertaken to obtain succession rights for her daughter.
Landlord appealed to this Court by permission of Appellate Term, asserting that tenant's extended absence does not fall into any recognized exception to the requirement that she use the leased premises as her primary residence. Landlord argues that tenant failed to establish that the care she claims to have provided to her parents was required by any demonstrated medical condition, that her explanation for her absence was pretextual, and that the award for tenant's attorneys' fees, even as reduced, was excessive.
The exemption from statutory protection for dwelling units not used by the tenant as a primary residence is a universal feature of the rent regulatory framework (see Avon Bard Co. v Aquarian Found., 260 AD2d 207, 208 , appeal dismissed 93 NY2d 998 ). Thus, the governing statute provides that a landlord may recover possession of a rent-stabilized apartment if it "is not occupied by the tenant . . . as his or her primary residence" (Rent Stabilization Code [9 NYCRR] § 2524.4[c]). "Primary residence" is judicially construed as "'an ongoing, substantial, physical nexus with the . . . premises for actual living purposes'" (Katz Park Ave. Corp. v Jagger, 11 NY3d 314, 317 , quoting Emay Props. Corp. v Norton, 136 Misc 2d 127, 129 ). Although the statutes do not define "primary residence," the Rent Stabilization Code does provide that "no single factor shall be solely determinative," and lists "evidence which may be considered" in making the determination (Rent Stabilization Code [9 NYCRR] § 2520.6[u]). Rent Stabilization Code § 2520.6(u)(3) refers to the safe harbor protection of § 2523.5(b)(2) against loss of primary residence by reason of absence due to certain conditions such as active military duty, full time studies or hospitalization, plus "other reasonable grounds." Thus, the Code allows the court to apply the flexible definition of § 2520.6(u) or the "other reasonable grounds" clause of § 2523.5(b)(2) in determining primary residency. A tenant's provision of medical care to another person is not listed among the excusable factors (Rent Stabilization Code [9 NYCRR] § 2523.5[b]). Hence, to be considered a protected absence, it must come within the ambit of the statutory protection afforded to "other reasonable grounds" for alternative residence.
Whether a temporary absence to provide medical care to others constitutes a reasonable ground for residing elsewhere, thereby precluding a finding that a rent-stabilized primary residence has been abandoned, is a question that has not been decided by this Court. However, Appellate Term has ruled that a temporary relocation to care for an infirm parent does not compel a finding that a rent-stabilized apartment is not being used as a primary residence (see e.g. Hudsoncliff Bldg. Co. v Houpouridou, 22 Misc 3d 52, 53  [protracted absence to care for bedridden mother "in and of itself does not mandate a finding of nonprimary residence"]). In that case, "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" (id.).
In the matter at bar, tenant maintained at least this nexus with the subject premises and, as noted by Civil Court, "left behind the most important person in her life," her daughter, then 16 years old. As this Court has noted, a reviewing court is obliged to defer to the findings of the trial court "unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence, especially when the findings of fact rest in large measure on considerations relating to the credibility of witnesses" (Claridge Gardens v Menotti, 160 AD2d 544, 544-545 ). Civil Court's findings are amply supported by record evidence and will not be disturbed.
At trial, the building superintendent testified that he saw tenant only infrequently in 2001 and 2002 but regularly saw Cindy at the premises. Tenant testified that she left her position as a nurse at New York University Medical Center to provide regular care to her ailing parents in California on a daily basis from the spring of 2001 to December 2002. She explained that her father was almost 90 years old and suffered from various systemic conditions, including lupus, hypertension, a herniated lumbar disc, lumbago, allergies and hearing loss, and that her mother, who was then recovering from knee surgery, was physically incapable of caring for her husband. Tenant tended to her parents' health needs by administering medication, checking their vital signs and managing their daily personal ...