Your aged parents or your home" is not a choice anyone would want to
face, especially when your parents are 78 and 80, and your New York
apartment is rent stabilized. But that is exactly what confronted
Charlene Lee of Manhattan.
In litigation that began in 2002 and ended in July 2009, the
landlord, 542 East 14th Street LLC, commenced a holdover proceeding in
Housing Court charging that Lee, a nurse, had breached her lease and
was no longer entitled to her apartment. The landlord claimed her
apartment was not her primary residence because she had spent most of
the previous two years in California. But Lee established that she had
been in California caring for her ailing parents, and that her New York
apartment continued to be occupied by her 16-year-old daughter, then a
student at Stuyvesant High School. (During the long course of this
litigation, the daughter, Cindy, has graduated from high school and
college and is now in her last year of medical school, according to the
New York Law Journal.)
The law requires the tenant of a rent-stabilized apartment to occupy
the premises for at least 180 days a year for it to be considered a
primary residence. Only primary residences are entitled to rent
regulation. But although Lee did not personally meet the
180-day-in-the-apartment-test, she also had no other residence. While
in California to care for her sick, non-English speaking parents, Lee
stayed with various friends and relatives. She returned to New York,
her daughter and her apartment intermittently, staying for several
weeks at a time.
The Legal Rulings
Housing Court Judge Kevin McClanahan
dismissed the landlord's petition, finding that the 14th Street
apartment was Lee's primary residence. He noted that she maintained her
furniture and personal property at the Manhattan apartment and that it
was her address for banking, taxes, utilities and mail, as well as the
place where her daughter lived. Also, Charlene Lee had never
established in California the indicia of permanent residency, such as
acquiring a home or voting there. No evidence was presented to rebut
the allegations of family illness, and the court rejected landlord's
argument that the illness of Lee's parents was "merely a pretext" to
keep her apartment while actually residing in California.
The landlord also lost the next round, the Appellate Term, where two
judges out of three agreed with the Housing Court findings. The
Appellate Division, at the next appellate level, has now unanimously,
affirmed the finding of the two lower courts. In an opinion by Justice Peter Tom,
the Appellate Division addressed for the first time the question of
whether a tenant's absence for the reasons presented in this case
affect their eligibility for rent regulation. The court found that the
need to care "for a sick relative is a viable defense to a non-primary
residence claim by a landlord." This circumstance has now joined other
possible exceptions to the primary residence requirement, such as
military service, hospitalization, "or other reasonable grounds."
In all, eight judges have decided in favor of Lee. Moreover, her attorneys have been awarded $34,000 in legal fees.
Limits on Landlords
There are only a few ways for landlords to legally recover
possession of the apartments they own. Evictions may flow from failure
to pay rent, if the landlord prevails in a non-payment proceeding
brought in Housing Court. Holdover proceedings, such as the one brought
against Lee, begin when the owner or management claims that the
landlord-tenant relationship has ended, often as a result of primary
residence issues. Landlords who suspect tenants of living elsewhere or
of not spending half the year in the apartment often hire private
investigators or put the resident under surveillance to uncover
evidence that the premises in issue are not the primary residence --
that is, to challenge whether there is "an ongoing substantial,
physical nexus with the premises for actual living purposes," as the
Court of Appeals explained in a case involving Bianca Jagger's residence.
The decision about primary residence is generally not based on one
single factor, so landlords may arrange for searches of public records
to ascertain where the tenant votes, holds a driver's license, receives
mail, for example. They may search property records to see if there is
another home in, say, Florida. In addition, some landlords have
installed cameras, which time stamps and records the dates the occupant
enters the space. An artist reports his was done at her loft. A
Westside tenant whose spouse lives in another city, divides his time,
between Manhattan and the Midwest, literally counting the days in New
York in order to keep his primary residence here, and not lose the
apartment he lived in for decades, prior to his recent marriage.
In 2008, Bianca Jagger, the former wife of Mick Jagger of the
Rolling Stones, lost "an action of ejectment" in the state Supreme
Court rather than Housing Court, a decision which was affirmed by the
highest court, the Court of Appeals. In that case, immigration was the
critical factor, since Jagger, a British citizen, was in the United
States on a tourist visa. The court found
that she could not have both "a principal, actual dwelling place"
outside the country and also have her primary residence in New York
City. The two circumstances were called "logically incompatible.
It is considered unlikely that the Court of Appeals will hear the
Charlene Lee case. That would allow the decision letting her keep the
apartment to stand.
Lee was represented at trial by the office of Adam Leitman Bailey, P.C., and on appeal by David E. Frazer. The landlord was represented by Borah, Goldstein, Altschuler, Nahin & Goidel.
Emily Jane Goodman is a New York State Supreme Court Justice