Virtually all forms of rent regulation in New York City-Rent Stabilization, Rent Control, Mitchell-Lama to name a few-require that the apartment be maintained as the tenant’s primary residence. Clients will often say to me at an initial consultation something like this: “The apartment is my primary residence; I pay New York City taxes, I list the address on my voter registration, driver’s license and my jury duty notice came to that address.” Then comes the shocker-I tell these clients that while the address listed on those documents is important, the key factor in the case will generally be the number of days and, more importantly nights, that the tenant spends at the apartment. New York courts have repeatedly held that “physical presence in the apartment for ordinary living purposes” is the most important component of primary residence.

So you might ask, as many do, “How will the landlord prove this,” correctly assuming that the burden of proof in a non-primary residence case is on the landlord (while this is true in cases involving rent controlled and rent stabilized apartments, which are litigated in Housing Court, City Mitchell Lama cases are heard at an administrative proceeding before the Department of Housing, Preservation and Development and the burden of proof to establish primary residence is on the tenant).

These days most of us have an “electronic paper trail.” Many tenants regularly use credit and debit cards, ATMs, and EZ-Passes. Many work in buildings which require the employees to “swipe” in when they enter the building. Airlines keep a record of travelers’ flights. Con Ed, telephone and other utility records exist which show the amount of usage at the apartment and at the alternate residence(s). Land line phone bills show the frequency of outgoing calls. What all of these records have in common is that courts now routinely order tenants to hand over these records to the landlord during the court case in what is known as “discovery,” usually for a period of two years immediately prior to the commencement of the case. Thus, while the burden of proof is the landlord’s, the evidence the landlord will use to sustain its burden of proof will come from the tenant. And many of these records, such as the credit and debit card bills, EZ-Pass records and flight records create an “electronic footprint” which places the tenant at a geographical location on any given date, and show the tenant’s travel pattern. This so called “objective” evidence is much more persuasive to trial judges than testimonial evidence, and it is often these documents which are the key pieces of evidence in determining whether the tenant wins or loses the case.

Samuel J. Himmelstein