Appellate Division: Care for Ill Parent Not Abandonment of "Primary Residence"

One of the major legal battlegrounds between landlords and tenants who occupy rent stabilized apartments in New York City is whether the apartment is the tenant's "primary residence." If it is not the tenant's primary residence, the landlord is entitled to evict the tenant and relet the apartment at market rent.

A primary residence has been construed by the courts as "an ongoing, substantial, physical nexus with the...premises for actual living purposes."

In a matter of first impression, the Appellate Division, First Department, ruled today that a tenant's nearly two-year absence from her New York apartment to care for her ill parents in California did not constitute the abandonment of her primary residence. 542 East 14th Street LLC v. Lee.

The court noted that during the two-year period the tenant's teenage daughter continued to reside in the apartment while she attended high school, the tenant never voted in California, never rented or owned any realty in California, listed her New York apartment on her tax returns, maintained bank accounts in New York, periodically returned to New York, and kept her furnishings and personal possessions at the apartment.

"The evidence presented in this case," the Court concluded, "supports the trial court's findings that tenant maintained an ongoing substantial physical nexus to the New York apartment and that she did not abandon the subject stabilized premises but maintained it as her primary residence while she was temporarily in California caring for her infirm elderly parents."

Caring for an ill elderly parent is not a unique circumstance. The case is important for clarifying that a protracted absence from New York City to care for a parent will not alone constitute the abandonment of a primary residence.