Laufer v. Hauge

• Decision Date: 31 May 1988
• Citation: Laufer v. Hauge, 528 N.Y.S.2d 878, 140 A.D.2d 671 (N.Y. App. Div. 1988)
• Parties: Lajos LAUFER, Respondent, v. Barbara T. HAUGE, Appellant, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 878

528 N.Y.S.2d 878

140 A.D.2d 671

Lajos LAUFER, Respondent, v.Barbara T. HAUGE, Appellant, et al., Defendants.

Supreme Court, Appellate Division Second Department.

May 31, 1988.

Shatz & Meier, New York City(Steven K. Meier and Robin Cass, of counsel), for appellant.

Klein & Rosenzweig, Brooklyn (Richard T. Farrell and Ilene J. Miller, of counsel), for respondent.

Before THOMPSON, J.P., and BROWN, WEINSTEIN and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

In an action to recover rental arrears and for use and occupancy of a residential apartment, the defendantBarbara Hauge appeals from (1) an order of the Supreme Court, Kings County(Morton, J.), dated January 26, 1987, which granted the plaintiff's motion for an order of attachment with respect to approximately $107,000 of the appellant's assets and (2) an order of the same court, dated July 7, 1987, which denied her motion, in effect, for reargument.

ORDERED that the appeal from the order dated July 7, 1987, is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order dated January 26, 1987, is reversed, on the law, and the plaintiff's motion for an order of attachment is denied; and it is further,

ORDERED that the appellant is awarded one bill of costs.

The plaintiff is the holder of the proprietary lease to a cooperative apartment located on West 82nd Street in Manhattan.The appellant is allegedly the tenant of the apartment.Since 1980, the plaintiff has been attempting to obtain use and occupancy of the apartment and market value rent from the appellant.The appellant has failed to vacate the apartment or pay rent since this time.The question of actual rights to the apartment is currently before the New York State Division of Housing and Community Renewal(hereinafter DHCR) and is not an issue presented upon this appeal.

By order to show cause dated December 2, 1986, the plaintiff moved to attach the appellant's assets pursuant to CPLR 6201 in the amount claimed in his complaint.The affidavit and exhibits annexed to the moving papers claimed that the appellant was a domiciliary of the State of Wyoming because: she had, in an affidavit used to register to vote in the State of Wyoming, dated September 9, 1986, sworn to be a "bona fide" resident of that state, she voted by absentee ballot in Teton County, Wyoming, her answer to the plaintiff's complaint was notarized in Teton County, Wyoming, and she had obtained a Wyoming State driver's license.

The appellant's answering affidavit stated that she maintains her home in New York, pays her taxes (including New York City resident income tax) here and was registered to vote here.She conceded spending approximately one month out of every year at her family's ranch in the State of Wyoming, having a driver's license from that State and having registered to vote there in 1986.

Upon a review of the record, we find Supreme Court erred in granting the plaintiff's motion to attach the appellant's assets.The dispositive issue is whether the appellant is or is not a domiciliary of this State thus determining whether CPLR 6201(1) can be used to attach her assets."Domicile" has been defined as one's principal and permanent place of residence where one always intends to return to from wherever one may be temporarily located.A person may have two or more residences but can only have one domicile ( Matter of Brunner, 41 N.Y.2d 917, 394 N.Y.S.2d 621, 363 N.E.2d 346;Matter of Newcomb, 192 N.Y. 238, 584 N.E. 950), and it has generally been held that the residence established earlier in time remains the individual's domicile until a clear intention to change is established ( Matter of Gadway, 123 A.D.2d 83, 510 N.Y.S.2d 737;Matter of...