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In a case of apparent first impression, a Manhattan judge has awarded possession of a rent-stabilized studio to its landlord, holding that the tenant’s “homeless lifestyle” resulted in his failure to use the apartment as his primary residence as required by law. The tenant’s lifestyle is a product of depression, agoraphobia, claustrophobia and obsessive-compulsive disorder, according to his psychiatrist. The landlord, Tokyo-based TOA Construction Co., did not need to establish that the tenant, Michael Tsitsires, had lived at an alternative address, Civil Court Judge Gerald Lebovits added. “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,” Lebovits wrote, in TOA Construction v. Tsitsires, 113064-00. “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.” TOA Construction served Tsitsires with a combined termination and “Golub” nonrenewal notice in July 2000. The notice claimed that Tsitsires failed to utilize his $104-per-month Single Room Occupancy apartment in the Windermere building — located at 57th Street and 9th Avenue, reputedly the second-oldest large apartment building in Manhattan — as his primary residence between Dec. 1, 1998, and Nov. 30, 1999. At trial, the building’s former superintendent testified that he reviewed more than 2,500 hours of videotape from a camera monitoring the building’s lobby and that he saw Tsitsires enter the building only once. On that occasion, Tsitsires exited the building 40 minutes later. The superintendent added that he had personally seen Tsitsires in the building only six or seven times between 1997 and 2000. Tsitsires asserted seven affirmative defenses, including that TOA Construction had breached its warranty of habitability and that the Americans with Disabilities Act required TOA to provide him with a reasonable accommodation. His psychiatrist testified that Tsitsires “hated” his apartment and that he sought to escape from it. PLAINTIFF’S BURDEN After a six-day trial, Lebovits found for the petitioner-landlord. Crediting the superintendent’s testimony, the judge found that the landlord met its fact-specific burden of proving that the tenant had not used the apartment as his primary residence. “The evidence establishes that respondent used the apartment in question during the Golub period only as a storage facility and for [his girlfriend] to shower,” Lebovits wrote. “A tenant using a rent-regulated apartment ‘for storage is not one who is a victim of the housing [crisis] but may rather be said to be a contributing and exacerbating factor in the continuation of the critical shortage of affordable apartments,’” he added, quoting Great North Realty v. Ward, NYLJ Sept. 30, 1999. Tsitsires’ “physical nexus” with the apartment was insufficient to satisfy rent regulations, Lebovits concluded. The court also found that Tsitsires lacked a “credible excuse” for his absence from the apartment. He differentiated the case from those analogized by Tsitsires, including absences due to either prison sentences or medical treatment. “The court declines to extend rent-regulation protection to a tenant who claims that his mental condition prevents him from living in the subject apartment,” Lebovits wrote. “Respondent’s physical nexus to the apartment is not a subjective standard to be tailored to his mental outlook and lifestyle.” TOA Construction’s attorney, Steven S. Sieratzki of Sieratzki & Glassman, said that Tsitsires’ decision to forgo other options evidenced that he was taking advantage of rent regulations. Sieratzki said that following Tsitsires’ Article 78 petition in 1998, his name was placed at the top of the waiting list for public housing, which he never accepted. “Why should it now fall on the shoulders of this private owner to subsidize his housing accommodation when he chose not to follow through on his own?” Sieratzki said. “If he had other options, then the owner should have been able to exercise his rights.” Tsitsires’ attorney, Trisha L. Lawson of Davis Polk & Wardwell, could not be reached for comment.

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