
    [830 NYS2d 16]
    TOA Construction Co., Inc., Respondent, v Michael Tsitsires, Appellant, et al., Respondents.
    Supreme Court, Appellate Term, First Department,
    December 20, 2006
    
      APPEARANCES OF COUNSEL
    
      Davis Polk & Wardwell, New York City (Trisha L. Lawson of counsel), for appellant. Steven S. Sieratzki, New York City, for TOA Construction Co., Inc., respondent.
   OPINION OF THE COURT

Per Curiam.

Final judgment, entered July 7, 2005, reversed, with $30 costs, and final judgment awarded to tenant dismissing the petition.

This holdover summary proceeding seeks possession of tenant’s stabilized apartment — a single-room occupancy unit located at 400 West 57th Street, Manhattan — on the ground of nonprimary residence. While acknowledging, as it must, that tenant does not maintain a separate residence anywhere else, landlord nonetheless seeks to evict the tenant from his home of 35 years based upon the sad reality that tenant, who is unemployed and a recipient of SSI disability benefits, spends nearly all of his time outdoors, in what was described at trial as a “safe zone” located within a 10-block radius of the building premises, where tenant sleeps in Central Park or “on a stoop somewhere.” In this connection, the trial record painfully discloses that tenant’s aberrant, “homeless” lifestyle is the product of deep, long-standing emotional difficulties, fueled either by a panic disorder from which tenant undisputedly suffers, substance abuse problems, or both. It deserves mention that the genuineness and severity of tenant’s emotional problems was confirmed by the logistical accommodation fashioned by Civil Court in allowing tenant’s trial testimony to be elicited at the Park Central Hotel located on Seventh Avenue between 55th and 56th streets, a location within the so-called safe zone surrounding the subject premises.

In the particular circumstances of this case, and considering the undisputed facts that tenant at all times kept his clothing and personal belongings in the apartment and received mail there, we find unavailing landlord’s contention that tenant relinquished or abandoned the unit as his primary residence. While the substantial emotional difficulties daily faced by tenant appear to have prevented him from actively using the apartment, tenant’s absences must be deemed excusable for purposes of nonprimary residence analysis, at least on this record which shows that “there was no abandonment of the premises or establishing of any new residence” (Katz v Gelman, 177 Misc 2d 83, 84 [1998]).

Nor are we prepared to equate the peculiar, nay bizarre, habits of this unfortunate tenant with the type of “misuse of rent-regulated space” (Cox v J.D. Realty Assoc., 217 AD2d 179, 185 [1995]) to which primary residence requirements are addressed. Granted, “[p]ublic policy is not advanced by permitting housing units to be held, partly or wholly unutilized, by tenants whose interest is pecuniary gain rather than affordable housing.” (Briar Hill Apts. Co. v Teperman, 165 AD2d 519, 523 [1991], quoting Park S. Assoc. v Mason, 123 Misc 2d 750, 753 [1984], affd 126 Misc 2d 945 [1984].) However, such public policy concerns do not require us to sustain the needless eviction of this seriously disturbed tenant, upon what in essence would be a judicial finding that tenant maintains his primary residence on a park bench.

Exercising our authority to review the record developed at the nonjury trial and render the judgment warranted by the facts (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492 [1983]), we reverse the possessory judgment awarded to landlord and dismiss the petition.

McCooe, J.P.

(dissenting). The trial court, in a well-reasoned, 18-page decision following a six-day trial, reached a decision based upon the facts and the controlling law (9 Misc 3d 469). Its findings of fact and conclusions of law summarizing the decision state in part:

“The court finds that petitioner met its burden of proof to show that respondent did not use the apartment as his primary residence or for actual living purposes during the Golub period. He maintained a homeless lifestyle likely caused, one psychiatrist explained, by substance abuse. Another psychiatrist stated that he is claustrophobic and hates his apartment.
“The court also finds that petitioner need not prove that respondent lived at an alternative address during the Golub period. It is enough that petitioner proved that respondent abandoned the apartment to live on the streets, in the park, on stoops, and at his friends’ homes. The Legislature’s objective of protecting the housing stock will not be advanced by allowing respondent to use the subject apartment as he did only to store his belongings, receive mail, and let his girlfriend shower.
“The court additionally finds that respondent’s mental disabilities do not constitute an excusable reason for his absence from the subject apartment. Respondent failed to show that he will return and use the apartment as a primary residence. Both psychiatrists stated that he will not take medication or undergo treatment that might allow him to return to his apartment permanently. Accordingly, petitioner is granted a final judgment of possession.” (9 Misc 3d at 471.)
“On a bench trial, the decision of the fact-finding court should not be disturbed upon appeal 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 (Nightingale Rest. Corp. v Shak Food Corp., 155 AD2d 297). Here, the evidence supports the trial court’s findings” (Claridge Gardens v Menotti, 160 AD2d 544, 544-545 [1st Dept 1990]).

The legal issue is whether the subject premises were the tenant’s primary residence (Glenbriar Co. v Lipsman, 5 NY3d 388, 390 [2005]). “Primary residence is ‘an ongoing, substantial, physical nexus with the [stabilized] premises for actual living purposes’ (Emay Props. Corp. v Norton, 136 Misc 2d 127, 129)” (East End Temple v Silverman, 199 AD2d 94, 94 [1st Dept 1993]).

Contrary to the majority opinion, affirmance would not be a “judicial finding that tenant maintains his primary residence on a park bench” (at 67). The finding is that the subject premises are not the tenant’s primary residence. “The landlord has the burden of showing, by a preponderance of the evidence, that the tenants did not use the apartment as a primary residence” (Glenbriar Co. v Lipsman, 5 NY3d 388, 392 [2005]; see also TOA Constr. Co. v Tsitsires, 2003 NY Slip Op 50651[U] [App Term, 1st Dept 2003, McCooe, J., dissenting], mod 4 AD3d 141 [1st Dept 2004]).

The subject premises are not the tenant’s primary residence because he does not use it for actual living purposes, only storage. His girlfriend uses it to shower and she keeps the only key. He has lived on the street for many years. Based upon his long-term psychiatric history and refusal to take medication, there is no claim or indication that he intends to return to the premises for actual living purposes.

The judgment should be affirmed.

Davis and Gangel-Jacob, JJ., concur; McCooe, J.P., dissents in a separate memorandum. 
      
       Tenant’s testimony that, in addition to living on the street, he stays inside his apartment, without venturing out, for months at a time, was rejected by the trial court as incredible, and we do not second-guess the court’s finding on that issue.
     