Note: If at any time before the landlord can obtain a final judgment of possession the tenant or his spouse reaches 62 years of age, the tenant obtains an added protection in that even if the landlord can win the proceeding the landlord would have to relocate the tenant to an apartment at the same rent in the same neighborhood which most landlords will not have the ability to comply with.

Further, the same protection and procedure applies where you or your spouse is disabled.

Note: If rent controlled or rent stabilized outside of the City, pursuant to the EPTA, the twenty-year rule which has been described above applies and the landlord cannot maintain such proceeding against such regulated tenant.

Outside the City the same rules apply as in the City to both rent stabilized and rent controlled as to age and disability apply.

IF THE APARTMENT IS RENT STABILIZED IN THE CITY OF NY

Here, if the landlord wants your apartment, while there are ways to fight, the rules all favor the landlord:

1. The forum where this case will be tried is Landlord-Tenant (Housing) Court.

2. The landlord does not have to prove a clear and compelling necessity. The landlord in this friendly forum only has to prove the nebulous standard called “good faith.”

Before I go forward and suggest how you address this matter I will state cautions so that you understand the problems you will confront:

1. realistically for a tenant to combat this nature of proceeding you will need initially substantial money to retain an attorney and make sure your attorney knows this area of law.

2. if you seek to combat the landlord and the landlord starts proceedings if you lose and the landlord obtains a judgment of possession you risk having to pay the landlord’s attorney’s fees, and market rate rent perhaps back to the date your lease expired.

1. If the notice can be knocked out the landlord must then provide a new lease and pay your attorney’s fees. And, if you elect a two-year lease the landlord cannot try again until your new renewal lease will expire.

2. The landlord may make a mistake in the commencement of the proceeding and your lawyer may obtain dismissal but this would only be a temporary victory since it does not impair the non-renewal notice so the landlord can reinstitute proceedings in Court again.

3. If your attorney elects not to move to dismiss he will probably move for discovery this can be done by interrogatories or an Examination Before Trial. This is vital to your case as it is here where your attorney can prove for objective evidence which may contradict the good faith allegation upon which the landlord's proceeding rests.

It is important that you understand that the only way you can attack the landlord at trial is to attack the credibility of the landlord’s claim of good faith. Unless you can show that the landlord is incapable of living in your apartment or that the family member of the landlord is incapable to live in the apartment you are not going to win your case.

Should you lose the trial you do have a right to appeal. However, an appeal is expensive and will only be effective if the Court grants a stay pending appeal.

WHEN THE LANDLORD BRINGS A NON PRIMARY
RESIDENT HOLDOVER PROCEEDING AGAINST
A REGULATED TENANT

Here the landlord to succeed must prove your primary residence is in another place. If you can demonstrate that you spend more than 183 days of a year in your apartment your landlord cannot evict you on this ground.

Short of your being able to show the above you still can demonstrate a nexus to the apartment.

In these proceedings the landlord will take discovery and you will have to provide documents.

If you are rent controlled and do not pay City Income Tax you will lose your apartment as you will not be able to demonstrate nexus. You may be able to demonstrate nexus if your job or profession keeps you away from your apartment.

You may be able to still demonstrate nexus if the reason you are out of the apartment because of a legitimate care taker circumstance, i.e. moving in with a brother who has terminal cancer, or to take care of an aged parent with intent to return to your apartment.

Recently the Appellate Court has approved “snowbirds”, which issue is now pending before the New York Court of Appeals.

If you are a snowbird — living in New York in the summer and in a southern state in the winter and you want to protect your status, I suggest the following:

1. I would be punctilious in making sure I lived 183 days in NYC. Keep a diary so you can prove dates and keep travel records.

2. pay all income taxes in New York City and New York State with New York address.

3. I would not buy residential property in another state.

4. I would not pay an income tax in another state.

5. I would execute all legal documents relating to my residence with the New York address.

6. Your will and all back documents should carry your N.Y. residence address.

Caution: Landlord may try to claim non-primary residency if you are away from the apartment for educational studies. Here you should file a letter from the school addressed to the landlord or if you must relocate for business or because of your profession you should make this known to your landlord.

Any lawful act by the landlord with the intent of an unlawful objective may be viewed as harassment.

The problem here confronted by the regulated tenant is the reluctance of DHCR to take any action until the Housing Court makes its determination. However, I advise if the tenant believes that the landlord has brought a false and sham proceeding the tenant should file as soon as possible and while the DHCR will do nothing until the L and T proceedings terminate, you can request the DHCR to then reopen and if they do there can be serious consequences to the landlord such as heavy fines to the State of New York and the loss of any license that may be held by the landlord.