Emel Realty Corp. v. Carey, 188 Misc. 2d 280 (N.Y. App. Term. 2001). · Go Syfert
Emel Realty Corp. v. Carey, 188 Misc. 2d 280 (N.Y. App. Term. 2001). Cases Citing This Book View Copy Cite
10 citation events (9 in the last 25 years) across 5 distinct courts.
Strongest positive: Stahl Assoc. LLC v. Cataldo (nycivctny, 2026-01-23)
Top citers, strongest first. 7 distinct citers. How cited ↗
discussed Cited as authority (rule) Stahl Assoc. LLC v. Cataldo
Civ. Ct. NYC, NY Cty. · 2026 · confidence medium
Where an absence from an apartment is “attributable to a credible, excusable reason,” it will constitute a defense to a nonprimary residence proceeding (Emel Realty Corp. v Carey, 188 Misc 2d 280, 282 [App Term, 1st Dept 2001]; see also Second 82nd Corp. v Veiders, 51 Misc 3d 142[A] , 2016 NY Slip Op 50652[U] , *1 [App Term, 1st Dept 2016] [citing Rent Stabilization Code (RSC) [9 NYCRR] §§ 2520.6(u) and 2523.5(b)(2)]).
cited Cited as authority (rule) 409-411 Sixth Street, LLC v. Mogi
N.Y. App. Div. · 2012 · confidence medium
(Emel Realty Corp. v Carey, 188 Misc 2d 280, 282-283 [App Term, 1st Dept 2001 per curiam], affd 288 AD2d 163 [1st Dept 2001].) The term “primary residence” has not been defined by statute.
cited Cited as authority (rule) 409-411 Sixth Street, LLC v. Mogi
N.Y. App. Div. · 2012 · confidence medium
(Emel Realty Corp. v Carey, 188 Misc 2d 280, 282-283 [App Term, 1st Dept 2001 per curiam], affd 288 AD2d 163 [1st Dept 2001].) The term “primary residence” has not been defined by statute.
discussed Cited as authority (rule) Toa Construction Co. v. Tsitsires
N.Y. City Civ. Ct. · 2005 · confidence medium
Credible Excusable Reason for Tenant’s Absence A tenant’s underutilization of a rent-regulated premises “may not alone suffice for a finding of nonprimary residence, at least in circumstances where the tenant’s absence is attributable to a credible, excusable reason.” (Emel Realty Corp. v Carey, 188 Misc 2d 280, 282 [App Term, 1st Dept 2001, per curiam], affd 288 AD2d 163 [1st Dept 2001, per curiam].) Despite the Appellate Term’s statement in the majority opinion in petitioner’s appeal that “the psychological underpinnings of tenant’s occupancy status is of little, if any, re…
discussed Cited as authority (rule) Tabak v. Steele
N.Y. App. Term. · 2005 · confidence medium
Assocs. v Spence, 180 Misc 2d 93 [App Term, 1st Dept 1999]).” (Emel Realty Corp. v Carey, 188 Misc 2d 280, 282 [App Term, 1st Dept 2001].) It is noteworthy that the Race Avenue address was used in connection with the Bronx property, while a New York City post-office box address was used in conjunction with Steele’s application for housing assistance payments for the two rental properties located in Medford.
discussed Cited as authority (rule) 200 East 27th LLC v. Schiffmiller-Nachshen
N.Y. Sup. Ct. · 2005 · confidence medium
(Glenbriar Co. v Lipsman, 11 AD3d 352 [1st Dept 2004] [where a 3-2 majority upheld a 2-1 majority in the Appellate Term ( 2002 NY Slip Op 50225[U] [2002]), finding the tenant was in fact a primary resident of the subject unit].) Further, it has been held that “the fact that a tenant spends relatively little time in a regulated apartment may not alone suffice for a finding of nonprimary residence, at least in circumstances where the tenant’s absence is attributable to a credible, excusable reason” (Emel Realty Corp. v Carey, 188 Misc 2d 280, 282 [App Term, 1st Dept 2001], affd 288 AD2d 16…
discussed Cited as authority (rule) Rocky 116 L.L.C. v. Weston
N.Y. App. Term. · 2003 · confidence medium
Evaluating the entire history of the tenancy (see, 615 Co. v Mikeska, 75 NY2d 987, 988 [1990]), including the so-ordered stipulation entered into by tenant and the predecessor landlord purporting to waive the rent stabilization primary residence requirements (see, Rocky 116 v Weston, 284 AD2d 139 [2001]), we agree with the trial court that tenant’s limited occupancy of the subject studio apartment did not constitute the type of “ ‘ongoing, substantial physical nexus with the controlled premises for actual living purposes’ * * * that would justify affording the tenancy continued protect…
Retrieving the full opinion text from the archive…
Emel Realty Corp., Appellant-Respondent
v.
Roseanne Carey, Also Known as Roseanne Carey-Young
Appellate Terms of the Supreme Court of New York.
Apr 6, 2001.
188 Misc. 2d 280
2001 N.Y. Misc. LEXIS 228
APPEARANCES OF COUNSEL, Belkin Burden Wenig & Goldman, L. L. P., New York City (Sherwin Belkin, Magda L. Cruz and David M. Skaller of counsel), for appellant-respondent. Rosearme Carey, respondent-appellant pro se.
Cited by 9 opinions  |  Published

OPINION OF THE COURT

Per Curiam.

Final judgment entered on or about April 26, 1999 reversed, with $30 costs, and final judgment of possession is awarded in favor of landlord on the holdover petition.

In this summary holdover proceeding to recover possession of a rent-stabilized apartment on nonprimary residence grounds, Civil Court made the following findings of fact after trial: (1) the tenant is “underutilizing” the subject West 75th Street apartment, having stayed overnight at the premises only seven times between April 1997 and May 1998; (2) tenant’s friend, respondent undertenant Larsson, resided in the subject apartment “for months” during that same time frame; (3) during the most recent 24-month renewal period (July 1996-June 1998), the tenant spent a substantial portion (roughly half) of her time in Florida, staying either in her parents’ Clearwater apartment or with various friends; and (4) “[w]hen in New York [tenant] spends a lot of time” at a nearby apartment on Central Park West leased to an individual named Sudarsky, with whom tenant shared an “intimate relationship.” The trial court summed up the tenant’s occupancy of the subject apartment in this manner: “Between going to Florida, visiting friends, and going to Mr. Sudarsky’s apartment, [tenant] spends relatively little time in the [subject] apartment.” The principal reason given by tenant for her acknowledged sporadic occupancy of the subject apartment — the claimed presence of asbestos — was found by the trial court to be a mere “afterthought” and “not credible.” Despite these facts and credibility determinations strongly adverse to tenant’s litigation position, Civil Court ultimately dismissed the holdover petition, noting that “underutilization alone is not sufficient to show non primary residence” and that landlord had failed in its burden to “identify another place other than the subject premises where respondent [tenant] primarily resides.”

Our authority to review the record developed at the bench trial and render the judgment warranted by the facts is as broad as that of the trial court (Northern Westchester Professional Park Assocs. v Town of Bedford, 60 NY2d 492, 499; Nestor v Britt, 213 AD2d 255). Exercising that authority here, and adopting the trial court’s own fully supported factual find[*282] ings of “underutilization,” we conclude that tenant’s occupancy of the subject apartment “did not constitute the type of ‘ongoing, substantial, physical nexus with the [regulated] premises for actual living purposes’ * * * that would justify affording the tenancy continued protection under the rent stabilization laws.” (Berwick Land Corp. v Mucelli, 249 AD2d 18, 19.)

Granted, the fact that a tenant spends relatively little time in a regulated apartment may not alone suffice for a finding of nonprimary residence, at least in circumstances where the tenant’s absence is attributable to a credible, excusable reason (see, Coronet Props. Co. v Brychova, 122 Misc 2d 212, affd 126 Misc 2d 946; Katz v Gelman, 177 Misc 2d 83; see also, Claridge Gardens v Menotti, 160 AD2d 544). Significantly, however, the tenant’s attempts herein to explain away her limited use of the regulated apartment premises — centering largely upon an illusory constructive eviction theory based on claimed asbestos contamination — were flatly (and appropriately) rejected by the trial court. To the extent that tenant sought to justify her frequent and prolonged absences from the subject apartment on the basis of the itinerant nature of her singing career, her unsubstantiated assertions in this regard were not directly addressed by the trial court and, even if accepted, would provide no excusable reason for the tenant’s demonstrated failure to regularly reside in the subject apartment during her stays in New York City.

Nor does the record support a finding that the landlord failed to satisfy its evidentiary burden at trial. While there is appellate authority for the proposition that the burden is on the landlord in a nonprimary residence case to establish that the tenant maintains a primary residence in a place other than the subject premises (Sharp v Melendez, 139 AD2d 262, 264, lv denied 73 NY2d 707; Four Winds Assocs. v Rachlin, 248 AD2d 352, 353; but see, Katz v Gelman, supra, 177 Misc 2d, at 84-85), this language should not be read to require a landlord to pinpoint with certainty the precise location of a tenant’s primary residence in a situation where, as here, the tenant is shown to spend considerable amounts of time at several different alternate addresses. The landlord clearly met its evidentiary burden in this case by establishing, through preponderant evidence, that during the relevant time period the tenant did not actively use the regulated apartment premises for dwelling purposes and instead regularly lived in multiple residences elsewhere (see, 45th St. Assocs. v Spence, 180 Misc 2d 93). Any perceived uncertainty as to which of the alternate[*283] addresses shown to be used by tenant actually constituted her principal residence should not serve to deprive the landlord of its possessory remedy on nonprimary residence grounds otherwise firmly established at trial.

In light of this disposition, the issue raised on tenant’s cross appeal is rendered academic.

The decision and order of this Court entered herein on December 14, 2000 (187 Misc 2d 607) is hereby recalled and vacated.

Parness, P. J., Davis and Suarez, JJ., concur.