Glenbriar Co. v. Lipsman , 783 N.Y.S.2d 546 ( 2004 )

Order, Appellate Term of the Supreme Court, First Department (Lucindo Suarez, J., Phyllis Gangel Jacob, J., concurring; William P McCooe, J.P, dissenting), reversing a judgment of Civil Court, Bronx County (Brenda Spears, J.), entered May 16, 2001, which had awarded petitioner landlord possession, and granting respondent tenants final judgment of possession dismissing the petition, affirmed, without costs.

Forty-five years ago, in 1959, Lillian Lipsman and her husband moved into apartment A211 at 4555 Henry Hudson Parkway in Bronx County, New York. Since that time, they have lived in and called that apartment home. The couple raised two children in apartment A211. It remains fully furnished, has never been sublet, and contains Mrs. Lipsman’s most important personal effects, including her clothing, her family china and her photo albums.

In 1995, because Mr. Lipsman has emphysema, which is exacerbated by the cold, the Lipsmans jointly purchased a $20,000 condominium in West Palm Beach, Florida with their son Howard and his wife Elizabeth. The elder Lipsmans, both of whom are over 80 years old, now spend winter months in Florida and return to New York every spring. For tax reasons, Mr. Lipsman has adopted the Florida condominium as his primary residence, but Mrs. Lipsman continues to maintain her primary residence in New York. Unlike her husband, Mrs. Lipsman maintains ongoing relationships with her doctors in New York. Also, she is registered with Social Security in New York, and has at least three active bank accounts in New York. She continues to vote in New York elections.

By this summary proceeding, the landlord seeks to evict the Lipsmans from their Bronx apartment, on the ground that it is not their primary residence. We agree with the majority and the concurrence at the Appellate Term that the landlord did not meet its burden of proving, by a preponderance of the evidence, that Mrs. Lipsman maintains her primary residence in Florida. The evidence at trial, which included testimony from five witnesses, including Mrs. Lipsman herself, establishes that Mrs. Lipsman resides in New York for approximately six months each year, and has maintained an ongoing, “substantial physical nexus” with her apartment in New York “for actual living purposes” (see Village Dev. Assoc. v Walker, 282 AD2d 369 [2001]; 23 Jones St. Assoc. v Keebler-Beretta, 284 AD2d 109 [2001]; Four Winds Assoc. v Rachlin, 248 AD2d 352 [1998]). Although there were discrepancies in the trial testimony as to the exact dates that Mrs. Lipsman travels to and from Florida each year, none of the witnesses contested the fact that Mrs. Lips-man divides her time equally between New York and Florida.

It is uncontested that the Lipsmans have lived in the Bronx apartment for over 45 years, and that they raised their children in that apartment (see 615 Co. v Mikeska, 75 NY2d 987 [1990] [appropriate for court to evaluate entire history of tenancy in considering issue of primary residence]; Four Winds Assoc., 248 AD2d 352 [1998], supra). Denial of a renewal lease would undeniably have a devastating impact not only for Mrs. Lips-man, but also for her family, whose lives are rooted there, and who still come back to their childhood home to visit.

While Mr. Lipsman may have prepared joint tax returns for the couple listing the Florida address as a primary residence, this fact should not be considered fatal to Mrs. Lipsman’s claim of primary residency in New York, as “a tenant’s address as designated on her tax return is merely one of many factors to be considered in determining primary residence; it is not a controlling factor” (Village Dev. Assoc., 282 AD2d 369 [2001], supra, citing 9 NYCRR 2200.3 [j]); see also 300 E. 34th St. Co. v Habeeb, 248 AD2d 50, 55 [1997]; West 157th St. Assoc. v Sassoonian, 156 AD2d 137, 139 [1989]). In addition, although Mr. Lipsman applied for a homestead tax exemption on the Florida apartment, and Mrs. Lipsman, who did not sign the form, is listed as a “co-applicant,” Mr. Lipsman states on this form that his marital status is “single.” It is of note that Mr. Lipsman also specifically declares that his wife is a resident of New York. Mr. Lipsman’s attempts to reduce his tax liability by changing the state of his primary residence should not inure to the detriment of his wife. Mrs. Lipsman has kept a consistent presence at the Bronx apartment, and has continually maintained it as her primary residence. It is well settled that a husband and wife may establish two separate primary residences without penalty (see Matter of Rose Assoc. v State Div. of Hous. & Community Renewal, 121 AD2d 185, 187 [1986], lv denied 69 NY2d 601 [1986]). The fact that the Lipsmans may have what has been referred to as a “conventional” marriage does not deprive them of the right to declare separate primary residences under law.

Further, as aptly stated in the Appellate Term decision, “this case presents a not uncommon ‘snowbird’ situation” where an elderly tenant purchases a Florida property for use during the winter and/or for vacations. (2002 NY Slip Op 50225[U], *3.) However, the decision to spend winters in Florida with her husband, should not, under the circumstances, have the corollary effect of causing Mrs. Lipsman to forfeit her principal residence of long standing in New York. Concur—Mazzarelli, J.P., Andrias and Ellerin, JJ.