Sharp v. Melendez

• Decision Date: 15 May 1979
• Citation: 531 N.Y.S.2d 554,139 A.D.2d 262
• Parties: Peter Jay SHARP and Edmund C. Duffy, as Trustees u/a/d
• Court: New York Supreme Court — Appellate Division

Page 554

531 N.Y.S.2d 554

139 A.D.2d 262

Peter Jay SHARP and Edmund C. Duffy, as Trustees u/a/d May

15, 1979, for and on Behalf of Randall Allison

Sharp, Plaintiffs-Respondents, v. Eliseo MELENDEZ, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Aug. 11, 1988.

Howard A. Wenig, of counsel (Gary M. Rosenberg and Susan R. Lipp with him on the brief; Rosenberg & Estis, P.C., New York City, attorneys) for plaintiffs-respondents.

Errol A. Brett and Robin A. Bernstein, of counsel (Schwarzfeld, Ganfer & Shore, New York City, attorneys), for defendant-appellant.

Before KUPFERMAN, J.P., and KASSAL, ROSENBERGER, ELLERIN and SMITH, JJ.

KASSAL, Justice.

The issue before us is whether two non-contiguous apartments leased by defendant-tenant comprise a single residential unit and, as such, constitute a primary residence subject to the protection of the rent regulatory statutes.

On or about October 19, 1973, defendant-tenant, Eliseo Melendez, Jr. ("tenant"), entered into a two-year lease with plaintiffs' predecessor-in-interest, 15 West 72nd Street Associates, for Apartment 2-H, located at 15 West 72nd Street in Manhattan. The lease, which ran for a term commencing November 1, 1973 and ending October 31, 1975, contained a rider with a dotted line after the phrase, "The demised premises are to be occupied by", upon which was typed "Mr. Melendez".

Shortly after taking possession of the one-bedroom apartment, tenant, who is a diabetic, had a friend, Jaime Berrios, move in to assist him in administering his daily insulin injections. Berrios's tenancy was known to, and acquiesced in, by the landlord, as evidenced by the three-year renewal lease tenant entered into with 15 West 72nd Street Associates on October 29, 1975, which named both him and Berrios. The renewal lease term was from November 1, 1975 to October 31, 1978.

In early 1978, Berrios moved from the apartment, and tenant asked his parents, then residing in Puerto Rico, to come to New York to assist him with his illness. The care he required consisted of help with his daily insulin injections, preparation of special meals, and availability to take him to the hospital in case of medical emergency. Tenant's parents, Eliseo Melendez, Sr. and Laura Melendez, agreed to assume these responsibilities, and in May 1978 moved to New York and into the subject apartment. Once again reflective of tenant's full disclosure to the landlord, and the latter's approval, tenant's second renewal lease, signed October 18, 1978, no longer contained Mr. Berrios's name as co-tenant. Instead, the lease, which ran from November 1, 1978 through October 31, 1981, bore solely defendant's name, as had his original lease, and, significantly, the portion of the lease reading "The demised premises are to be occupied by", was now completed with the typed words, "Eliseo Melendez and Family". It was signed by Church Management Corp., as agent for the landlord, 15 West 72nd Street Associates.

Because the one-bedroom apartment was too small for tenant to comfortably live there with his parents, he requested a two-bedroom apartment in the building shortly after his parents moved in. The landlord informed him that none was then available, but that tenant would be notified if and when one became vacant. In the meantime, tenant took another apartment three blocks from the subject premises during the summer of 1978. Within two months of his having done so, the landlord contacted tenant to inform him that while a two-bedroom apartment was still unavailable, he could lease a studio apartment, Apartment 9-U, in the building.

Tenant accepted the landlord's offer, and on October 21, 1978, signed a second lease with Church Management Corporation, pursuant to which he would occupy Apartment 9-U for a period commencing December 1, 1978 and ending October 30, 1980. Upon inquiring whether his parents could be named as signatories to the lease for Apartment 2-H, defendant was advised by the landlord that this would not be necessary. Tenant's leases for both apartments continued to be renewed by lease extension agreements. For Apartment 2-H, the subject of the within action for declaratory judgment brought on or about February 25, 1985, the most recent lease renewal agreement covered the period November 1, 1984 through October 31, 1986. It was executed by "Church Management, A Division of Peter Sharp & Co., Inc. As Agent For: Randall A. Sharp."

In seeking a declaration as to the legal rights and relations of the parties with respect to Apartment 2-H, plaintiffs argued that defendant did not maintain Apartment 2-H as his primary residence. After a trial, the Judicial Hearing Officer agreed, finding that tenant maintained his primary residence in Apartment 9-U, and, accordingly, declaring that Apartment 2-H was not tenant's primary residence and that said premises were therefore not subject to the Rent Stabilization Law of 1969, as amended by the Emergency Tenant Protection Act of 1974 and the Omnibus Housing Act of 1983.

We reverse. In a non-primary residence case, the burden is on the landlord to establish that the tenant maintains a primary residence in a place other than the subject premises....