Four Winds Associates v. Rachlin

• Decision Date: 02 March 1998
• Citation: 669 N.Y.S.2d 650,248 A.D.2d 352
• Parties: , 1998 N.Y. Slip Op. 1816 FOUR WINDS ASSOCIATES, Appellant, v. Leonore RACHLIN, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 650

669 N.Y.S.2d 650

248 A.D.2d 352, 1998 N.Y. Slip Op. 1816

FOUR WINDS ASSOCIATES, Appellant, v. Leonore RACHLIN, Respondent.

Supreme Court, Appellate Division,

Second Department.

March 2, 1998.

David I. Rosenberg, P.C., Garden City (Murray H. Greenspan and John A. Fortuna, of counsel), for appellant.

Monsour, Winn, Kurland & Warner, L.L.P., Lake Success (Richard L. Stracher and Michael S. Seltzer, of counsel), for respondent.

Before O'BRIEN, J.P., and SULLIVAN, FRIEDMANN and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

In an action for a judgment declaring, inter alia, that the defendant was not entitled to a renewal lease because she was not occupying the subject rent-stabilized apartment as her primary residence, the plaintiff appeals from so much of a judgment of the Supreme Court, Nassau County (Phelan, J.), entered January 10, 1997, as, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is modified by adding thereto a provision declaring that the defendant is entitled to a renewal lease of the subject rent-stabilized apartment; as so modified, the judgment is affirmed insofar as appealed from, with costs to the defendant.

The trial court properly determined that the defendant, the lessee of the rent-stabilized apartment, was entitled to a renewal lease (see, Emergency Tenant Protection Regulations [9 NYCRR 2500.9(k)]; McKinney's Uncons. Laws of N.Y. § 8625[a][11] ). The burden was on the plaintiff landlord to establish by a fair preponderance of the evidence that the defendant maintained her primary residence in a place other than the subject premises (see, Sharp v. Melendez, 139 A.D.2d 262, 531 N.Y.S.2d 554). In considering the issue, it was appropriate for the court to evaluate the entire history of the tenancy (see, 615 Co. v. Mikeska, 75 N.Y.2d 987, 557 N.Y.S.2d 262 556 N.E.2d 1069). Although the defendant owns a condominium in Florida, registered her automobile there, and has a restricted Florida driver's license, the proof demonstrated that, inter alia, she votes in New York, pays New York income taxes, possesses a New York State driver's license, receives ongoing care from medical professionals in New York, and keeps her clothing in the New York apartment which is the subject of this action. Indeed, the defendant even withdrew an application for a Florida homestead exemption because she does not consider the Florida premises to be her primary residence. Accordingly, the objective evidence adduced at...