Nonprimary Residence Proceedings

At trial before Civil Court, the landlord submitted records showing minimal electrical usage in the apartment, together with proof that the tenant maintained a Vermont driver's license and that she co-owned a vehicle registered and insured in Vermont. The landlord also produced testimony by an investigator who called the apartment and found the telephone answered by a friend of the tenant who visited the apartment to water plants and pick up mail, and who allegedly told the investigator that the tenant spent the majority of time in Vermont.

The tenant countered with testimony by New York neighbors that they saw tenant in New York “frequently” or “roughly” once or twice a week. Based on the evidence, Civil Court found that the tenant spent only 45% of her time in the New York apartment, and concluded that the apartment was not her primary residence. The Appellate Term affirmed.

On the tenant's appeal, the First Department split 3-2, with the majority concluding that a “clear preponderance of the probative and credible evidence supports the conclusion that the tenant was using the New York apartment as her primary residence.” As a result, the majority reversed “on the law and the facts.” The dissenting justices argued ' as the Court of Appeals ultimately held ' that the majority had applied the wrong standard of review, and had substituted its own different interpretation of evidence rather than demonstrating that no fair interpretation of the evidence would support the determination reached by Civil Court and the Appellate Term.

The Standard of Review

Unlike the Court of Appeals, which is almost exclusively a “law court,” New York's appellate divisions have the power to review questions of fact as well as questions of law (CPLR Section 5501(c)). Under what circumstances is it appropriate for the appellate divisions to reverse on issues of fact? Whatever the answer might be in other areas of law, the First Department's decision in the Claridge case, supra, suggests a narrow scope of review in non-primary residence proceedings, akin to the scope that the Court of Appeals would generally apply when reviewing a trial court determination on an issue of law. If the trial court's conclusions “could not be reached under any fair interpretation of the evidence,” an appellate court would be hard pressed to sustain the trial court's conclusions as a matter of law.

The appellate divisions, and particularly the First Department, where most nonprimary residence cases arise, have not consistently applied the standard articulated in Claridge. That case is, of course, routinely cited when the court upholds a trial court determination. But in those cases where the First Department overturns a trial court determination, reference to Claridge is nowhere to be found.

For instance, in Carmine Limited v. Gordon, 41 A.D.3d 196, a unanimous First Department reversed “on the facts” the Appellate Term's affirmance of Civil Court's dismissal of landlord's nonprimary residence proceeding, holding that landlord had proved “by a preponderance of the evidence” that tenant was not using the apartment as her primary residence. And in Glenbriar Co. v. Lipsman, 11 A.D.3d 352, the same court affirmed the Appellate Term's reversal of a Civil Court determination awarding landlord possession in a non-primary residence proceeding, even though there was significant evidence to support Civil Court's determination that tenant's primary residence was in Florida. That evidence included the fact that tenant and her husband listed Florida as their home address in their joint federal income tax return, and the fact that tenants had cable television service and a telephone answering machine only in Florida and not in New York. In neither Carmine nor in Glenbriar did the court's opinion mention Claridge ' although Justice Friedman's dissent in Glenbriar did rely on Claridge, without drawing any response from the majority.

On its face, the Court of Appeals memorandum in Mogi settles the standard of review issue, and makes it clear that the appellate divisions must apply the Claridge standard to all nonprimary residence proceedings. What remains unclear is how the appellate divisions will respond.

Very little (other than Court of Appeals review) prevents an appellate division from purporting to apply the Claridge/Mogi standard, and then concluding that even given the evidence presented by the losing party below, no fair view of that evidence wvould support the trial court's determination. How the appellate divisions apply the Claridge/Mogi standard will determine whether the Court of Appeals will have to revisit this issue in the near future.

Stewart E. Sterk, Mack Professor of Law at Benjamin N. Cardozo School of Law, is Editor-in-Chief of this newsletter.

If a trial court determines, in a landlord's nonprimary residence holdover proceeding, that a tenant did ' or did not ' maintain his primary residence in his rent-stabilized apartment, what standard of review must an appellate court apply in reviewing that determination? In 409-411 Sixth Street, LLC. V. Mogi , 2013 N.Y. Slip Op. 06604, decided on Oct.10, the Court of Appeals addressed the issue, and reversed the First Department's determination for according insufficient deference to the trial judge's determination. The court endorsed a standard articulated in an earlier First Department opinion, Claridge Gardens v. Menotti , 160 A.D.2d 544, 544-45, holding that the trial court's determination should not be disturbed “unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence, especially when the findings of fact rest in large measure on considerations relating to the credibility of witnesses.”

The Mogi Case

Masako Mogi, a Japanese citizen who maintains permanent residence in the United States, first leased the subject rent-stabilized studio apartment in 1980. Since 1990, she has also owned a 1 '-story cabin in Vermont. In 2006, the landlord provided Mogi with notice that it had terminated the tenancy on the ground that tenant had relocated to Vermont, and had occupied the apartment for fewer than 180 days a year during the preceding two-year period. When the tenant failed to leave, the landlord brought a holdover proceeding.

At trial before Civil Court, the landlord submitted records showing minimal electrical usage in the apartment, together with proof that the tenant maintained a Vermont driver's license and that she co-owned a vehicle registered and insured in Vermont. The landlord also produced testimony by an investigator who called the apartment and found the telephone answered by a friend of the tenant who visited the apartment to water plants and pick up mail, and who allegedly told the investigator that the tenant spent the majority of time in Vermont.

The tenant countered with testimony by New York neighbors that they saw tenant in New York “frequently” or “roughly” once or twice a week. Based on the evidence, Civil Court found that the tenant spent only 45% of her time in the New York apartment, and concluded that the apartment was not her primary residence. The Appellate Term affirmed.

On the tenant's appeal, the First Department split 3-2, with the majority concluding that a “clear preponderance of the probative and credible evidence supports the conclusion that the tenant was using the New York apartment as her primary residence.” As a result, the majority reversed “on the law and the facts.” The dissenting justices argued ' as the Court of Appeals ultimately held ' that the majority had applied the wrong standard of review, and had substituted its own different interpretation of evidence rather than demonstrating that no fair interpretation of the evidence would support the determination reached by Civil Court and the Appellate Term.

The Standard of Review

Unlike the Court of Appeals, which is almost exclusively a “law court,” New York's appellate divisions have the power to review questions of fact as well as questions of law (CPLR Section 5501(c)). Under what circumstances is it appropriate for the appellate divisions to reverse on issues of fact? Whatever the answer might be in other areas of law, the First Department's decision in the Claridge case, supra, suggests a narrow scope of review in non-primary residence proceedings, akin to the scope that the Court of Appeals would generally apply when reviewing a trial court determination on an issue of law. If the trial court's conclusions “could not be reached under any fair interpretation of the evidence,” an appellate court would be hard pressed to sustain the trial court's conclusions as a matter of law.

The appellate divisions, and particularly the First Department, where most nonprimary residence cases arise, have not consistently applied the standard articulated in Claridge. That case is, of course, routinely cited when the court upholds a trial court determination. But in those cases where the First Department overturns a trial court determination, reference to Claridge is nowhere to be found.

For instance, in Carmine Limited v. Gordon , 41 A.D.3d 196, a unanimous First Department reversed “on the facts” the Appellate Term's affirmance of Civil Court's dismissal of landlord's nonprimary residence proceeding, holding that landlord had proved “by a preponderance of the evidence” that tenant was not using the apartment as her primary residence. And in Glenbriar Co. v. Lipsman , 11 A.D.3d 352, the same court affirmed the Appellate Term's reversal of a Civil Court determination awarding landlord possession in a non-primary residence proceeding, even though there was significant evidence to support Civil Court's determination that tenant's primary residence was in Florida. That evidence included the fact that tenant and her husband listed Florida as their home address in their joint federal income tax return, and the fact that tenants had cable television service and a telephone answering machine only in Florida and not in New York. In neither Carmine nor in Glenbriar did the court's opinion mention Claridge ' although Justice Friedman's dissent in Glenbriar did rely on Claridge, without drawing any response from the majority.

On its face, the Court of Appeals memorandum in Mogi settles the standard of review issue, and makes it clear that the appellate divisions must apply the Claridge standard to all nonprimary residence proceedings. What remains unclear is how the appellate divisions will respond.

Very little (other than Court of Appeals review) prevents an appellate division from purporting to apply the Claridge/Mogi standard, and then concluding that even given the evidence presented by the losing party below, no fair view of that evidence wvould support the trial court's determination. How the appellate divisions apply the Claridge/Mogi standard will determine whether the Court of Appeals will have to revisit this issue in the near future.

Stewart E. Sterk, Mack Professor of Law at Benjamin N. Cardozo School of Law, is Editor-in-Chief of this newsletter.