The “Sushi Defense” Gets Cooked Court Rules on Non-Primary Residency

In a stunning decision that has wide-reaching application to the scope of review to be used by appellate courts throughout the State of New York, the Court of Appeals has overturned an errant decision of the Appellate Division in a hotly contested “non-primary residence” case. Under the Rent Stabilization Law, an otherwise protected tenant who does not occupy his or her apartment as a primary residence loses the right to continued occupancy and can be evicted at the expiration of the lease.

Primary vs. Non-Primary Residence

Upon learning that a certain tenant did not occupy her apartment in Manhattan as a primary resident, an owner commenced a “non-primary residence” proceeding in Civil Court’s landlord-tenant part (Housing Court) upon the expiration of the tenant’s lease. After a three-day non-jury trial, the owner prevailed in the Civil Court on its claim that the tenant primarily lived in her home in Vermont, which she owned individually and lived in with her “life partner” and from which address she registered her car. Moreover, the owner established an extremely low utility usage in the New York apartment, lack of any real ties to New York, and a clear preponderance of credit card and ATM usage in Vermont as compared to New York. The owner further submitted evidence demonstrating that the tenant, a semi-retired freelance writer, had deducted the apartment’s rent as a business expense. In addition, the tenant did not have television cable service in her apartment.

The tenant appealed the Civil Court’s decision to the Appellate Term, which is the court of first appellate review after the Civil Court. In a unanimous decision, the Appellate Term found that a “fair interpretation of the evidence” supported the trial court’s determination. In affirming the lower court, the Appellate Term noted that the owner had established that there was “negligible electricity usage in the apartment” and that the “tenant had acknowledged that she spends a substantial amount of time in a house she owns in Westminster, Vermont, an address listed on tenant’s driver’s license and motor vehicle registration and where tenant’s long-time companion admittedly lived.”

Sushi Defense

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