In Review of Earlier Ruling, Panel Finds for Landlord

, New York Law Journal

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A woman who was rarely seen around her rent-stabilized East Village apartment and whose electric bills were as low as $20 to $30 per month can be evicted for non-primary residence, an Appellate Division, First Department, panel has ruled, affirming a housing court judge's order.

The First Department had decided the case once before, ruling 3-2 in October 2012 that the eviction order must be reversed. The majority made its decision in part because it credited the woman's testimony that she usually ate takeout food or cooked meals that did not require heat, like sushi (NYLJ, Oct. 3, 2012). In October 2013, however, the Court of Appeals found that the First Department had improperly rejected the housing court's factual findings, and sent the case back.

The First Department's unsigned, unanimous reversal of its earlier decision, 409-411 Sixth Street v. Mogi, 570068/09, was handed down on Dec. 31. Justices Angela Mazzarelli, David Friedman, Dianne Renwick and Helen Freedman sat on the panel.

The tenant, Masako Mogi, moved into her studio apartment on East Sixth Street in 1980. In 2006, the owner of her building told Mogi that it would not renew her lease because it believed the apartment was no longer her primary residence. Instead, the landlord claimed, Mogi was living primarily in a cabin in Vermont that she owns with Noriko Isogai, her companion of many years. Mogi refused to leave, and the landlord commenced a holdover proceeding.

In support of its claim, the landlord noted that Mogi's car was registered in Vermont and had a Vermont license plate; that a private investigator posing as someone delivering a package had been told by another building resident that Mogi was usually in Vermont; and that Mogi's electrical bills in the apartment were very low. The landlord also claimed that Mogi's debit card transactions showed that she was in New York less than half the time.

Mogi, in turn, said that the apartment was her primary residence. She said that she had a full-time job in Manhattan during the relevant period. She claimed that her utility bills were low because she usually ate take-out or prepared food without heat. Four other tenants, including the one who allegedly told the landlord's investigator that Mogi lived in Vermont, testified in support of her.

Manhattan Civil Court Judge Jean Schneider found for the landlord, relying largely on the credit and debit card records. The Appellate Term, First Department, ruled that the Schneider may have put "undue emphasis" on the credit and debit records, but that the record taken as a whole still pointed to the same conclusion.

Renwick, writing for the majority of the First Department panel in 2012, wrote that the evidence only showed that Mogi spent significant time in Vermont, not that the record actually showed that Mogi's Vermont house was "nothing more than her weekend/vacation home," and that the holdover petition should have been denied. She said that Mogi had adequately explained her low electricity usage. Renwick was joined by Mazzarelli and Freedman.

Then-justice James Catterson, wrote a dissent saying in particular that Mogi's explanation of her electric bills and some of the testimony offered by her neighbors were not credible. He was joined by Friedman.

Catterson also said that the majority had gone beyond the permissible scope of appellate review and reversed the lower courts' factual findings simply because it would have reached a different conclusion. He cited Claridge Gardens v. Menotti, 160 A.D.2d 544, 554 N.Y.S.2d at 194, which held that "the decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court's conclusions [cannot] be reached under any fair interpretation of the evidence."

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