Primary residence claim destroyed at trial.

Non-primary residence cases often present close contests of conflicting evidence supporting both the owner's and tenant's positions. The owner comes forward with evidence pointing to a residence other than the subject apartment being maintained by the tenant. The tenant counters by presenting evidence purporting to rebut the owner's claim. The trial continues in an ebb and flow of testimony and documents until the file ultimately shifts in the favor of one party or the other.

However, there are instances where a veritable tidal wave of evidence sweeps through the Court. In a recent case, the owner was able to demonstrate, by overwhelming and irrefutable evidence, that the tenant was a non-primary resident. As a result, at the conclusion of a two day trial, rather than reserving decision until a written opinion could be promulgated, the Court immediately ruled from the bench in the landlord's favor.

In 520 East 81st Street Assodates rs. Rodolitz, the owner, represented by Jeffrey L. Goldman, partner in Belkin Burden Wenig & Goldman, asserted that the tenant did not maintain an upper east side apartment as his primary residence. The tenant protested vigorously.

Before proceeding to trial, the owner took the tenant's deposition. Under Court order the tenant was directed to appear and to produce, among other things, all checks for the years 1988 through 1991. When the checks were received by the owner's attorneys and placed in numerical order, it was apparent that four to five consecutively numbered checks were missing each for each year. The owner's attorneys subpoenaed bank records and received copies of all the missing checks. It became clear why the subpoenaed checks had been "missing"; that is, the checks were for rent, New York Telephone, Consolidated Edison and parking at a Queens garage -- all relating to a Queens apartment.

At his deposition, the tenant was asked whether or not he ever signed a lease for another apartment outside of New York County; whether he paid for parking outside of New York County; whether he ever paid utilities for any apartment outside New York County. The tenant answered all of these questions in the negative.

At his deposition, the tenant produced a driver's license reciting the subject apartment address. However, it became apparent that the license had been applied for and obtained by the tenant only after he had received service of a nonrenewal of lease notice. The tenant was asked whether or not his prior license recited an address other than the subject apartment address. Again, the tenant responded in the negative.

However, when confronted with the facts, the tenant had no explanation for a prior license listing a Long Island address. At trial, the owner called a doorman and porter from the Queens building where the owner believed the tenant actually resided as witnesses. In addition, Consolidated Edison and New York Telephone representatives were subpoenaed for trial. The Queens building employees identified the tenant as a resident in the Queens building. The telephone and utility employees stated that the East 81st Street apartment showed only basic service for New York Telephone and an amount of electrical usage equivalent to a refrigerator being plugged in. This stood in stark contrast to the records showing substantial telephone and electric usage from the Queens apartment. The tenant's Queens landlord was also subpoenaed to produce his lease file which showed that, in fact, the tenant had signed rent stabilized leases and renewals, as well as other documents stating that he was a primary resident of the Queens apartment.

The tenant attempted to explain all this away by a belated claim that he maintained the Queens apartment for business purposes. However, the tenant did not come forward with a scintilla of relevant proof to substantiate this bald assertion. As a result, upon the conclusion of the trial Judge Howard Malatzky ruled in favor of the owner, awarding a final judgment of possession to the apartment.

Examining the weight of evidence produced by each side in this case, it is surprising that the tenant failed to either concede or stipulate to the owner's petition. The Court recognized the overwhelming proofs produced by the owner in awarding a final judgment of possession from the bench.