Non-primary residence blues.

A prominent jazz musician was recently found to be out of harmony with the requirement that he maintain his New York City apartment as his primary residence. The tune that he played in Court did not strike a credible chord with the judge. Although a chores of testimony was heard, amounting to a virtual symphony of denial, the lyrics adduced on behalf of the owner echoed with evidentiary rhythm. As a result, Judge Arlene H. Hahn of the Civil Court composed a final judgment of possession, with the owner being given the lead role.

In Duell v. Amran, the owner alleged that David Amran, world-renowned musician, no longer lived in his Manhattan apartment as his primary residence. Rather, the owner asserted, Amran primarily resided in his Putnam Valley farmhouse. Amran argued, as performers have often successfully argued, that although he travels the world, his New York apartment is the site that he always returns to. As such, Amran contended, notwithstanding his frequent and protracted absences form his Manhattan apartment, he was still a New York City primary resident. In support, Amran produced his voter registration, union membership card, NYNEX and Con Edison bills - all showing the New York address.

This defense, which has been upheld by various courts over the years, can be summarized as follows: "I admit that out of every 365 days I do not live in my apartment 183 days (a majority); however, because my profession requires that I travel extensively, my protracted absence is not an indication of non-primary residence... To the contrary, when all is said and done, my New York apartment remains the residence where I spend the plurality of my time."

It is a defense that is grounded in logic and reason; but it is a defense which can only be utilized where the facts support its use. In Duell v. Amran, it was ultimately found to be a defense that was wholly inapplicable to the circumstances at issue.

Amran did not merely travel to Putnam Valley. This was not merely a place where he had a "gig." Instead, Amran (and his wife) owned a home, registered his car and paid his taxes using the Putnam address. In addition, the owner demonstrated that the tenant's wife and children live in Putnam Valley, with their children attending local schools. Further, the family's dentist and chiropractor were also located near the Putnam Valley home. Simply stated, Putnam Valley was not an isolated stop for a touring musician, it was the tenant's family's home.

The owner, represented by Belkin Burden Wenig & Goldman, LLP (and, more specifically, by my partner, Joseph Burden), was able to sustain its prima facie case via the production of numerous publicly available documents, as well as documents obtained during Amran's deposition, each of which repeatedly showed Amran voluntarily reciting Putnam Valley as his home address (health insurance, bank accounts, credit cards, charge cards, driver's license). Amran's "On the Road Again Defense" (with apologies to Willie Nelson), was an affirmative defense for which Amran bore the burden of proof. However, careful questioning by the landlord's attorney exposed the tenant's case, such that Amran's burden (his defense) was not sustained.

The court noted that the tenant's NYNEX bills, although bearing the New York City apartment residence, reflected insignificant usage. In addition, what the court described as the "most conclusive evidence" was provided by a subpoenaed Con Edison representative who noted that the electric usage during certain years was reflective of less kilowatts that would be needed to run a 100 watt bulb, and that even during the highest consumption years, the amount of kilowatts actually consumed rendered the tenant's testimony (as to significantly greater use) incredible. In addition, the court drew a negative inference from the fact that neither the tenant's wife nor children testified at trial.

Legal theories are marvelous devices, but the application of any theory is limited to the facts and circumstances encountered. Here, the fact that a performer was involved gave rise to the use of a defense that has had prior success for other traveling artists. But a theory, albeit a valid one, cannot provide protection wider than its intended scope. As a result, Mr. Amran's status as famed performer was neither enough to excuse his absence from New York nor was it sufficient to explain away his Putnam Valley home.