## Facts

- Tenants S. Lee Lipsman and Lillian Lipsman occupied a Bronx apartment since 1959; the unit became rent-stabilized in 1971.
- After a 1984 cooperative conversion, the tenants did not buy shares and remained rent-stabilized; the landlord acquired the shares for the unit.
- In 1995, the tenants and relatives bought a condominium in West Palm Beach, Florida; Mr. Lipsman spent winters there for health reasons.
- Mr. Lipsman took steps indicating Florida residence, including seeking a Florida homestead exemption, obtaining a Florida driver’s license, and filing taxes reflecting Florida as his residence.
- The New York apartment remained furnished, was never sublet, and contained Mrs. Lipsman’s important personal property.
- Evidence supported that Mrs. Lipsman spent about six months each year in New York and maintained New York ties including bank accounts, physicians, voter registration, and Social Security connections.
- The landlord commenced a rent-stabilization holdover proceeding alleging the apartment was not the tenants’ primary residence.

## Issues

1. Whether the landlord proved, by a preponderance of the evidence, that the tenants did not use the rent-stabilized apartment as their primary residence under the Rent Stabilization Code.
2. Whether the Court of Appeals could review and overturn the intermediate appellate courts’ determination that the landlord failed to carry its burden.

## Decision

- Civil Court ruled for the landlord and awarded possession.
- Appellate Term reversed, dismissed the petition, and entered judgment awarding possession to the tenants, finding the landlord did not prove nonprimary residence.
- Appellate Division affirmed the Appellate Term.
- The Court of Appeals affirmed, holding that the Appellate Term’s burden-of-proof determination, affirmed by the Appellate Division, was a factual finding beyond the Court of Appeals’ review in this posture.

## Legal Principles

- In a rent-stabilization nonprimary-residence holdover, the landlord bears the burden to prove nonprimary residence by a preponderance of the evidence.
- Primary-residence determinations are fact-driven and may consider time spent in the apartment and whether the tenant maintains a substantial physical nexus to the premises for actual living purposes.
- The New York Court of Appeals, as a law court, generally will not reweigh evidence or review concurrent factual findings of the Appellate Term and Appellate Division outside limited categories of factual review.

## Conclusion

The Court of Appeals left intact the intermediate appellate courts’ finding that the landlord failed to prove nonprimary residence, and it affirmed dismissal of the holdover proceeding because that factual determination was not subject to further review.


Glenbriar Co. v. Lipsman, 5 N.Y.3d 388 (N.Y. 2005)