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409-411 Sixth Street, LLC, Petitioner-Respondent v. Masako Mogi

October 2, 2012

409-411 SIXTH STREET, LLC, PETITIONER-RESPONDENT,
v.
MASAKO MOGI, RESPONDENT-APPELLANT.



The opinion of the court was delivered by: Renwick, J.

409-411 Sixth St., LLC v Mogi

Decided on October 2, 2012

Appellate Division, First Department

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.

Angela M. Mazzarelli,J.P. David Friedman James M. Catterson Dianne T. Renwick Helen E. Freedman,JJ.

Respondent appeals from the order of the Appellate Term of the Supreme Court, First Department, entered on or about March 29, 2010, which, in a nonprimary residence holdover proceeding, affirmed the judgment of the Civil Court, New York County (Jean T. Schneider, J.), entered on or about August 8, 2008, after a non-jury trial, awarding petitioner-landlord possession of the subject premises.

RENWICK, J.

Petitioner landlord commenced this holdover proceeding to recover possession of a rent stabilized apartment located on East 6th Street, New York, New York, on the ground that respondent Masako Mogi (tenant) does not occupy the subject premises as her primary residence. Unlike the courts below, we find that the landlord has not established by preponderant evidence that the tenant has forfeited her principal New York residence of long standing.

The tenant occupies the subject studio apartment under a rent-stabilized lease entered into in 1980 and periodically renewed thereafter. By timely notice dated September 19, 2006, the landlord terminated the tenancy effective December 31, 2006, on the ground that the tenant had relocated to Westminster, Vermont and that she occupied the subject apartment less than 180 days a year during the preceding two-year period. When the tenant failed to surrender possession on January 1, 2007, this holdover proceeding ensued. In her answer, the tenant denied the landlord's allegations and averred that the property she owns in Vermont was not her primary residence, but was her summer-vacation home. Holdover Proceedings

At trial on the holdover petition, the tenant testified as a witness for petitioner as well as on her own behalf. On the landlord's case, the tenant stated that she has resided in the subject apartment since about 1980. Along with a bed, the tenant has a microwave oven, a stove, a coffee maker, medium sized refrigerator, a VCR, and small radio in the apartment. The tenant also maintained a phone line during the 2004-2006 period. In addition to herself, her friend Noriko Isogai had access to the phone, including when the tenant was not present in the New York apartment, as did her friend Earl Giaquinto, who watered the tenant's plants in the New York apartment when she was away.

Besides using her New York apartment as her living quarters, the tenant used the apartment for her business. In the period of 2004-2006, she worked as an English-to-Japanese translator on a per-assignment basis. The tenant's 2004 tax return reflected that she took a business deduction of $1,778 for utilities and $3168 as a "rent or lease" deduction for the apartment. She listed the apartment as her business address on such return. Since about 1990, the tenant has also owned a 1 ½ story cabin in Westminster Vermont, consisting of a ground floor with one large room and bathroom, a second floor loft, and a storage basement. The tenant shares the cabin with her friend, Isogai, with whom she has had a close relationship for many years. The second floor loft serves as the bedroom. The ground floor has a kitchen, bathroom, dining area and living room. Unlike the tenant, Isogai uses the Vermont cabin as her exclusive residence.

During the 2004-2006 period, bills for electrical and phone service to the Vermont residence were sent to the Vermont address. Two telephone lines were maintained at the Vermont property. The Vermont electricity, gas, and telephone bills are all listed in the tenant's name. In 2004-2006, the tenant maintained a driver's licence issued by Vermont, the vehicle she co-owned with Isogai was registered in Vermont, and the vehicle was insured using an agent located in Westminster, Vermont. The vehicle, purchased in 2003, was never registered in New York. The tenant is a citizen of Japan and a permanent resident of the United States. Each year between 2004 and 2006, she visited Japan for about one month. Her passport entries indicate that these trips took place in September 2004, April 2005, and March 2006, respectively.

The landlord also presented two witnesses who testified about the tenant's utility bills for the New York apartment during the relevant period. First, Susanne Briggs testified that she was a customer service representative for Con Edison (Con Ed). Pursuant to a subpoena, Briggs produced Con Ed records showing electrical and gas usage in the New York City apartment from January 2004 until February 2007. The amount of electricity used and gas used for the apartment was recorded. Briggs noted that the invoices were always sent to the New York City address and there was never a request to suspend service.

Second, James Carey testified that he was the president of a company specializing in reading, reporting, and installing electrical meters in commercial and residential properties. As part of his monitoring of residential meters, he was familiar with "usage of electricity by apartment dwellers." Based on his experience and his knowledge of studies conducted by DHCR and HUD, Carey stated that the "low average" electricity usage for single-room, studio-type apartments, such as the subject one, was between 200 to 250 kilowatts per month. Commenting on the tenant's electricity usage at the New York apartment based on the 2004-2006 utility bills, which reflect between 50-150 kilowatt usage per month, Carey opined that such usage was "considerably below" the average.

Lastly, the landlord presented the testimony of Earl Giaquinto, who has been friends with Masako Mogi since 1984. When the tenant was in Vermont, Giaquinto watered the plants in her New York apartment and retrieved the mail. Giaquinto sometimes used the apartment's phone to call the tenant in Vermont about the mail she had received. Giaquinto estimated that he performed these activities at the tenant's New York apartment about three times a month in the summer. But sometimes, he added, the tenant had rush jobs or computer and dental appointments, which would cause the tenant to come to New York more often. Overall, Giaquinto estimated, the tenant spends "most of her time in the city."

During his testimony, Giaquinto was asked about a call he received in September 2006 in which the caller, who asserted she had a package to deliver to the tenant, inquired about the tenant's whereabouts. The caller was actually a private investigator hired by the landlord, who specialized in "[n]on-primary residence investigations." The investigator, Joann Kunda, testified that, when she called Giaquinto on the pretext that she wanted to deliver a package to the tenant and had two addresses for her, one in New York and one in Vermont, Giaquinto answered, "she resides at both locations." According to Kunda, Giaquinto told her that the tenant "spent the majority of her time in . . . Vermont." Giaquinto, however, denied making such statement to Kunda. Instead, he testified that he told Kunda that the tenant was not at the New York address "at that time."

At trial, when the tenant was recalled as a witness on her own behalf, she testified that when she was in New York during 2004-2006, she often ate out or had "take-out." When she did prepare meals, it was done on the stove top, not the oven, or without cooking, as in the case of sushi. In Vermont, she rarely ate out. The tenant purchased the Vermont property in 1989. She was sure that her electric or gas usage at the New York apartment was not "different in any way in 2004 through 2006 compared to before [she] had the Vermont property." In support of that assertion, the tenant's Con Ed bills for 1988 and ...


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