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Despite Family Residing in Brooklyn, Tenant Prevails in Proving that Primary Residence was Chinatown Apartment


Despite Family Residing in Brooklyn, Tenant Prevails in Proving that Primary Residence was Chinatown Apartment

Landlord sued tenant claiming that apartment was not being used as tenant’s primary residence. On paper, the facts could not be much worse for the tenant’s case in his attempt to prove the Chinatown Hester Street apartment was his primary residence.

Tenant claimed that he resided in the apartment with his mother who died a few months before the start of the case. Tenant’s family, including his wife and two sons, lived in another unrelated apartment. Tenant asserted that he was estranged from his wife and only shared a residence with her and the family two nights a week because he had to care for his mother at the subject premises.

Landlord testified that her office resided in the subject premises and the owners claimed that they only saw tenant move in after his mother died. Landlord also claimed that tenant’s mother told the landlord that she lived alone. Con Edison employees testified that the electricity usage dropped significantly after his mother died and for the entire fall after her death the gas usage was zero.

The deed to the Brooklyn property listed tenant’s primary residence to a third property. When refinancing, all of the documents signed at the closing listed the Brooklyn property as tenant’s primary residence and not the Chinatown address. Tenant also received a tax credit for claiming the Brooklyn property as his primary residence. Tenant’s W2 and all credit cards and bank account statements all went to Brooklyn address.

These facts were incredible. Adam Leitman Bailey, P.C realized that we needed to directly attack each piece of evidence piece by piece. Then we needed to put on the greatest trial in the history of housing court to win this case.

First we attacked their biggest weakness–the Landlord’s lack of witnesses. With no superintendent living in the building and without any eyewitnesses other than the owners observing who lived in the apartment, on cross examination, we narrowed in the exact hours the owners would regularly spend in the building. Also on cross examination, we proved that based on where the owners sit in their office, they could not see who arrived and left from the subject apartment.

By narrowing down the hours the owners worked at the building, we put the tenant on the stand to demonstrate that his work hours and permanent social schedule kept him away from the building every hour that the landlord was present. Proof of his hours from tenant’s employer was provided as well as the testimony of the persons who socialized with him at the community center. On cross examination, the landlord could not explain why the superintendent did not take the witness stand, as he would have had the most information about who lived in the apartment.

To explain the alternative residence where his family lived, we performed a forceful direct examination on the tenant, turning this into a cross examination of our own witness. We drilled our client on his bus schedule and how he really spent dinner with his family and traveled back to the apartment to sleep. He was asked exactly what time he got on each bus and train and exactly how long each one took to arrive and depart.

To explain away the lack of use of home phone after his mother’s death, we provided his cell phone records, and these not only showed this as his means of communication, but the daily calls to his family’s residence showed he could not be living in Brooklyn and calling the Brooklyn home each night.

To explain the failure of any electricity at the residence, the tenant spoke of how he never cooked in the apartment. Tenant asserted that he did not cook in the apartment as he dined every evening with his wife in Brooklyn. He explained that he never used air conditioning, referring to his childhood without air conditioning in China.

With regards to his relationship with his wife, he explained that it is frowned upon in Chinese culture to be divorced. Therefore, although they no longer had relations, he did not wish to officially divorce his wife.

To explain away the mortgage documents sworn under oath declaring that another residence was his primary residence, it was proven that he did not read and write English, and that if he wanted the loan he needed to sign whatever was put in front of him. In addition, none of the papers were translated into Chinese.

To explain why he did not receive mail at the subject premises, we provided letters to the post office and reply letters from the post office showing that the tenant believed that someone had been breaking into his post box and tampering with the mail.

We called several witnesses that had visited the tenant multiple times at his residence and could describe the apartment perfectly. We also caught the landlord in several lies. On direct, the landlord said that she had visited the apartment several times. On cross examination, the landlord perfectly described what she thought the premises looked like. We asked her about the color of the walls, the decorations, the furniture. The landlord got it all wrong. She lied about the colors of the walls, mentioned furniture that did not exist and completely made up a story of what the apartment looked like. Showing the landlord photos of the way the apartment looked upon the date the landlord described it, she had no answer.

When we received the judge’s decision, we realized how our trial preparation paid off. The judge found credible the truth but incredible the story about how our client traveled hours to go to Brooklyn and have dinner with his family and return home the same night to his Hester Street Apartment. The judge also found that the landlord “was not in the building as often as she claimed.” In addition, the court found that the landlord’s testimony was directly contradicted later by the testimony of the tenant’s neighbor who had lived in the building for 27 years.

Thanks to Adam Leitman Bailey, P.C. our client is now living happily ever after in his home on Hester Street and is still visiting his son and wife in Brooklyn every week night for dinner.

Adam Leitman Bailey conducted the trial on behalf of the firm and Dov Treiman drafted the brief and memorandum of law. Carolyn Rualo prevailed in having the appeal dismissed.

Adam Leitman Bailey, P.C.

NEW YORK REAL ESTATE ATTORNEYS