An Interesting Non-Primary Residence Proceeding

The Appellate Term has decided an appeal of a non-primary residence proceeding in which the trial court ruled in favor of the tenant and the Appellate Term reversed and remanded for a new trial. The case caught my attention because the Appellate Term seems to have rejected an Appellate Division decision that should have precluded a portion of the Appellate Term's decision.In 405 East 56th Street, LLC v. Malfa, 2012 NY Slip Op 22097 (1st Dept. App.Term April 13, 2012) the Appellate Term reversed the decision/order entered after trial. The landlord alleged that the tenant made minimal use of the subject rent stabilized apartment for the year and one half prior to the service of the notice of non-renewal of lease. The tenant defended the proceeding by claiming two things - First that the apartment was too cluttered to occupy as a result of the tenant being forced to take his terrace furniture into his living room because of the landlord's ongoing renovations to the terrace. Second, that the tenant suffered from a psychological problem that prevented him from living alone. The trial court ruled in the tenant's favor based upon both of these defenses. The Appellate Term reversed finding that the tenant had failed to prove that the clutter was such that the apartment could not be occupied and because the trial judge had erred in permitting evidence of the alleged psychological problem.In the tenant's answer to the landlord's petition the tenant had not claimed that there was a psychological basis for the tenant to not occupy the apartment. Mid-trial the tenant called an expert witness to discuss the tenant's mental state. The landlord's attorney objected claiming that it was an unfair surprise because the tenant's responsive pleading did not alert the landlord to the claim that a mental health issue was preventing the tenant's occupancy. The trial court admitted the testimony and ruled in favor of the tenant on the defense. The Appellate Term reversed finding that it was an unfair surprise and reversible error to have admitted the testimony.What makes the case so interesting is the interplay between this brand new Appellate Term case and the Appellate Division, First Department case of Ascot Realty LLC v. Richstone, 10 A.D.3d 513, 781 N.Y.S.2d 513 (1st Dept. 2004). In Ascot Realty the trial judge was reversed by the Appellate Division for considering evidence of what transpired after the service of a notice of non-renewal of lease despite the fact that neither party objected to the admissibility of the evidence. The holding in Ascot was very definitive and speaks exclusively to the idea that it is reversible error for a trial court in a non-primary residence proceeding to consider evidence of what transpired after the service of a Golub Notice. Here, the Appellate Term found "based on its [our] independent weighing of the evidence" that the defense was not well-taken because the tenant resumed occupying the apartment full time within a few days after the service of the notice of non-renewal of lease. In other words the tenant's defense that a psychological problem prevented his occupancy looks rather empty when the tenant resumed occupancy as soon as the landlord served the notice of non-renewal.But - a reading of Ascot Realty specifically precludes an examination of what the tenant did after the service of the notice of non-renewal. I have sympathy for the trial judge in this case to this extent - putting aside what may have been a shaky defense of clutter and putting aside the evidentiary error of considering the expert's testimony - the trial judge (who was the same trial judge in Ascot Realty) seems to have now been reversed in Ascot Realty for considering evidence after the service of the notice of non-renewal and has now been reversed in Malfa for not considering evidence of what transpired after the service of a notice of non-renewal. The new trial should be interesting indeed.