Credit and debit card statements suggesting that a woman spent more time in her Vermont summer cottage than in her rent-stabilized East Village studio are not enough to evict her, a divided state appellate panel ruled yesterday, reversing a lower court judge.

The 3-2 decision from the Appellate Division, First Department, in 409-411 Sixth Street v. Mogi, 570068/09, reversed findings by both the Appellate Term, First Department, and Manhattan Civil Court Judge Jean Schneider (See Profile).

Justice Dianne Renwick (See Profile) wrote the majority opinion, joined by Justices Helen Freedman (See Profile) and Angela Mazzarelli (See Profile). Justice James Catterson (See Profile) dissented, joined by Justice David Friedman (See Profile). The panel heard oral argument on Dec. 6, 2011.

According to the majority opinion, the tenant, Masako Mogi, began renting a studio apartment on East Sixth Street in 1980. In 2006, the landlord notified her that her lease would not be renewed because she was effectively residing in Westminster, Vt., where she owned a cabin shared with her friend Noriko Isogai. Mogi refused to surrender the apartment and the landlord began a holdover proceeding.

The landlord cited several pieces of evidence that Mogi’s primary residence was in Vermont. Mogi owned a car registered in Vermont and had a Vermont driver’s license. After the terrorist attacks of Sept. 11, 2001, Mogi had written a letter to the landlord saying that she would be staying temporarily in Vermont because of the attacks, and wanted to receive her rent bill there. The landlord said that a private investigator had called a friend of Mogi’s in 2006 under the pretext of delivering a package to her, and the friend, Earl Giaquinto, had allegedly said that Mogi was usually in Vermont. Utility bills showed that Mogi’s electrical usage was unusually low. Finally, the landlord pointed to credit and debit card statements that purported to show that Mogi was in New York only 45 percent of the time.

Mogi testified that she spent most of her time in the apartment; that she had a full-time job in Manhattan during the relevant period; and that her utility bills were low because she usually ate take-out. Giaquinto testified that he had not, in fact, told the landlord’s investigator that Mogi was usually in Vermont. Three other tenants of the building testified that Mogi was usually in the building.

The Rent Stabilization Code says that “no single factor shall be solely determinative” in deciding whether an apartment is a primary residence, but that the relevant factors include whether the tenant uses the address on taxes or a driver’s license and whether the tenant lived in the apartment for more than 183 days per year.

Schneider found for the landlord, relying largely on the credit and debit card records. The Appellate Term ruled that the Civil Court may have put “undue emphasis” on the credit and debit records, but that the record taken as a whole still pointed to the same conclusion.

Renwick, in the opinion reversing that finding, said that the record actually showed that Mogi’s Vermont house was “nothing more than her weekend/vacation home,” and that the holdover petition should have been denied.

“For there is nothing inconsistent with the tenant having a primary residence in New York and concomitantly spending ‘a substantial’ amount of time in Vermont with her long-time friend and companion,” Renwick wrote. “An apartment should not be decontrolled merely because its tenant decides to spend her weekends, holidays and vacation days in a second home that she shares with a long-term friend and companion.”

The Rent Stabilization Code, she wrote, was “not intended to allow the eviction of an individual, like the tenant here, who travels extensively for personal reasons but who otherwise maintains a substantial physical nexus with her New York City apartment.”

Renwick also said that the 45 percent figure, given a margin of error, was “not insignificant” and did not warrant eviction.

Catterson, in dissent, wrote that the lower courts should have been affirmed, saying in particular that some of the testimony offered by Mogi’s neighbors was not credible.

“For example, the testimony of a tenant on which the majority relies and which includes the statement that the respondent tenant ‘would never be away from my purview’ cannot be accepted as credible, but only as meaningless and useless hyperbole,” he said.

Catterson said that the majority had applied the wrong standard of review, reversing the lower courts’ findings simply because it would have reached a different conclusion. He quoted Claridge Gardens v. Menotti, 160 A.D.2d 544, 554 N.Y.S.2d at 194, which held that “the decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court’s conclusions [cannot] be reached under any fair interpretation of the evidence.”

“Given all of the foregoing, in my opinion, a fair interpretation of the evidence in this case leads to the conclusion that although the tenant moved into the subject apartment approximately 30 years ago, she relocated to Vermont after the events of 9-11 in 2001, and thereafter no longer used the New York apartment as her primary residence,” he said.

Steven De Castro, Mogi’s attorney, said he had expected the appeal to hinge on the accuracy of the 45 percent figure derived from the credit and debit statements.

“This court had the option to say that the 45 percent number of the trial court was bogus, that it had no mathematical basis at all,” De Castro said. “They went much further than that. They said 45 percent is not that bad. You have to look at the witness testimony and the documentary evidence and the fact that the landlord did not produce any eyewitness…. They almost eschewed any number crunching.”

The decision, he said, affirms that “tenants do not have a duty to document every day they live in the New York region.”

Joseph Belkin of Belkin Burden Wenig & Goldman, counsel for the landlord, said he respectfully disagrees with the decision.