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Tenant Spoke Little English, Was Divorced, His Mail Was Sent to A Home that He Had Purchased For His Family Because A Daughter Managed His Paperwork

April 20, 2016

By Scott E. Mollen

Landlord-Tenant—Rent Stabilization—Primary Residence—Tenant Spoke Little English, Was Divorced, His Mail Was Sent to A Home that He Had Purchased For His Family Because A Daughter Managed His Paperwork—Tenant Did Some Sporadic Work in Maryland—Documentary Evidence Is Not Dispositive When There is Contrary Credible Testimony

A LANDLORD COMMENCED a summary holdover proceeding against a rent-stabilized tenant, alleging that the tenant had failed to maintain the subject apartment (apartment) as his primary residence. The tenant is divorced and has a son and two daughters. One daughter resides with the tenant in the apartment.

The landlord had issued a notice of nonrenewal, which stated that the tenant “was not maintaining the [apartment] as his primary residence; that [tenant] had not been seen at the [apartment] since approximately June 2009; that [tenant] had moved to [a Brooklyn address]; that [tenant] used that as his address for banking, credit and taxes purposes; that [tenant] maintained utility and phone accounts at the [Brooklyn address]; and that [tenant] obtained a drivers license in 2009 listing the Brooklyn [house] as his address.”

At trial, the landlord argued, inter alia, that the tenant “owns the Brooklyn [home], has a mortgage requiring he occupy said premises as his primary residence, and…[tenant] lists it as his address on various documents and on his tax returns.”

The court found that the tenant owned a two-family Brooklyn home (Brooklyn home). The tenant’s mortgage on the Brooklyn home provided that the tenant would occupy the Brooklyn home as his principal residence “for one year.” However, a rider to the mortgage for multifamily homes provides that such requirement is “inapplicable unless otherwise agreed in writing.”

The tenant maintained a Con Edison account at the Brooklyn home, had a Citibank account which listed the Brooklyn home as his address, the tenant’s financial and health documents were sent to the Brooklyn home. The tenant’s 1996 driver’s license application listed the apartment as his address. However, a 2009 motor vehicle license stated that the Brooklyn home was the tenant’s residence. The tenant registered to vote from the apartment. He did not register to vote from the Brooklyn home. Although the tenant’s 2011 tax return listed the Brooklyn home as his home address, a schedule to such return indicated that the tenant rented out the Brooklyn home for 365 days of the year and he did not personally occupy it on any days in 2011. The tax returns indicated that the tenant did not occupy the Brooklyn home on any days in 2012, as did the tenant’s tax returns for 2009 and 2010. The tenant reported receiving income for rent for the Brooklyn home in 2011.

The tenant came to the United States in 1985. He had moved into the apartment in 1994, with his wife and children. The tenant speaks only a few words of English. In April 2013, the tenant transferred a 50 percent interest in the Brooklyn home to one of his daughters. The tenant and his wife were divorced in 1997, but they lived together in the apartment until 2003. In 2003, because of marital problems, the wife and two children moved to the Brooklyn home. One daughter continued living with the tenant at the apartment since 1994.

The tenant testified that he had problems with his mailbox at the apartment and mail was sometimes lost. The tenant retained a mailbox key and continued to receive mail at such mailbox. The landlord replaced the mailboxes in the building in February 2013.

The tenant’s daughter who resided at the Brooklyn home had transferred the tenant’s mail to the Brooklyn home. Between 2007 and the present time, that daughter managed the tenant’s finances. The court found that the mailbox problems were not related to the tenant’s using the Brooklyn home for his documents. Rather, the court found that the tenant’s mailing address was changed for the convenience of the daughter who lived at the Brooklyn home, because of the tenant’s “lack of fluency in English and because [that daughter] handled all [of the tenant’s] affairs.” Moreover, since 2003, the tenant had only spent one night in the Brooklyn home.

From 1994 through 2007, the tenant had been a restaurant worker. After 2007, the tenant only worked sporadically. Between 2011 and 2012, the tenant did temporary work in a restaurant in Maryland. The tenant had worked there “every month or two for a few days at a time.” The tenant estimated that “he spent a total of 70 to 80 [days] in Maryland” over a two-year period. The tenant had stayed in housing provided by his employer. The tenant’s W-2 for 2011, reported $6,000 in income from the Maryland restaurant. At a rate of $125 per day, that meant that the tenant had worked a total of 50 days in Maryland in 2011. In 2012, the tenant’s W-2 form showed an income of $2,500, which would reflect wages for 20 days work.

The landlord had purchased the subject building in May 2012. The landlord had visited the building once or twice a month and did not recall seeing the tenant at the building. The landlord’s superintendent (super) saw “some tenants coming and going,” but he arrived at the building “at different times in the morning” and did “not do any repair work in the building.” The super knew the daughter, but did not know the tenant. Since neither the landlord, nor the super had “first hand knowledge about [the tenant’s] occupancy of the [apartment],” the court did “not give their testimony much weight….”

The tenant’s 33-year-old daughter testified that she had continuously resided in the apartment since 1994 and that the tenant purchased the Brooklyn home for the tenant’s wife and children. She testified that the tenant “can’t really express himself in English….” She had remained in the apartment since she felt “closer” to the tenant and “did not want to leave Manhattan.” She had never lived in the Brooklyn home. She confirmed that the tenant was absent from the apartment in 2011 and 2012 only when he worked in Maryland or vacationed in China. She also testified that the tenant visited the Brooklyn home for family gatherings, her mother lives on the upper floor with the tenant’s other daughter and the tenant’s 36-year-old son lives on the first floor with his wife and child.

The tenant’s other daughter is a banker who had moved to the Brooklyn home in 2003. She testified that she manages the tenant’s financial affairs and that she had “slowly started to transfer bills to the Brooklyn [home] because it was more convenient for her.”

The court found that the landlord failed to establish that the tenant did not maintain the apartment as his primary residence. The landlord did not establish that the tenant had specified another address for voting purposes, the tenant spent less than 183 days in the apartment in the most current calendar year or the tenant ever sublet the apartment. The evidence demonstrated that the tenant had “continuously lived in the [apartment] from 1994 through the date of the trial” and the tenant’s daughter had transferred the tenant’s documents to the Brooklyn home address, because of the tenant’s inability “to understand English and because she handled all of [tenant’s] finances and affairs….” Moreover, Appellate Division authority held that “documentary evidence does not preponderate over inconsistent testimonial evidence where there is credible testimony explaining connection to another premises).”

The landlord had presented no witnesses who contradicted the tenant’s witnesses as to why the documents were transferred to the Brooklyn home address. Additionally, the landlord lacked “first hand knowledge of where [tenant] was living during the relevant period” and the tenant’s occasional absences from the apartment, did not “change the fact that [tenant] has always continued to maintain an actual and substantial tie to the [apartment] as his home and for living purposes.” Furthermore, the tenant’s tax returns stated that the tenant did not occupy the Brooklyn home for personal use and the tenant had always paid all New York City taxes required of New York City residents.

The court distinguished cases which involved tenants who “deducted the full amount of the rent for their rent regulated apartments as a business expense on taxes, representing to the government that no part of the premises was used for personal purposes.” Accordingly, the court dismissed the proceeding.

Comment: Adam Leitman Bailey represented the tenant. He noted that “ownership or interest in real property other than the subject premises is not dispositive in a non-primary residence case,” the client had not taken “an inconsistent position on the tax returns” and noted that “the tax returns actually confirmed that he did not occupy the Brooklyn House.”

Walter Jennings, attorney for the landlord, advised that his client is appealing the decision.

BDS Associates v. QI Song Lin, Civ. Ct., N.Y. Co., Housing Pt., Index No. L&T 63921/2013, decided Jan. 14, 2016, Kraus, J.

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