Third Lenox Terrace Assocs. v. Edwards - 2012 NY Slip Op 400, 91 A.D.3d 532, 937 N.Y.S.2d 41 (App. Div. 1st Dept.)

Rule:

Although the apartment was no longer her primary residence after 1998, respondent, having continued to pay the rent and execute renewal leases extending through November 2005, cannot be found to have permanently vacated the apartment at any time prior to the expiration of the last lease renewal.

Facts:

Respondent Linda Edwards was claiming succession rights to the rent-stabilized tenancy of her sister, respondent Cynthia Edwards. Cynthia, the tenant of record, initially entered into a two-year lease with petitioner for the subject apartment. Petitioner commenced the instant summary holdover proceeding for possession of the apartment on the ground of non-primary residency, having discovered that Cynthia was not residing in the apartment as her primary residence, but that her sister Linda was residing there instead. Linda had the burden of proving that she resided with Cynthia in the apartment as her primary residence for a period of no less than two years prior to Cynthia permanently vacating the apartment. The civil court dismissed the petitioner’s summary holdover petition.

Issue:

Did the civil court err in dismissing the petition?

Answer:

Yes.

Conclusion:

Cynthia vacated the apartment in 1998 and established a residence elsewhere. She, however, continued to execute renewal leases for the apartment extending through November 2005 and continued to pay the rent by money orders issued in her name during that time. Accordingly, the relevant two-year period during which respondent Linda must show that she co-occupied the subject apartment with Cynthia is 2003 to 2005. Although Linda did submit sufficient documentary evidence to establish that she resided in the apartment during that period, there was no showing that Cynthia lived in the premises at that time, since she admittedly had been residing elsewhere since 1998.