(concurring). Because the Appellate Division has affirmed on findings of fact of the Appellate Term, I am constrained to concur in the Court’s opinion (see majority op at 390, 393-394).
I appreciate the stated desire of the Lipsmans to keep their rent-stabilized apartment so that, among other benefits, their children may maintain ties with the home in which they were raised. On the other hand, I also sympathize with those who cannot afford a similar apartment in which to raise their own families, a plight exacerbated by tenants availing themselves of stabilized or controlled rents for New York apartments while simultaneously maintaining a primary residence in another state.
An apartment should not be decontrolled merely because its tenants are retired and want to spend some of the colder months in a warmer climate. I write separately, however, to highlight the unseemly prospect of spouses living together yet claiming two separate primary residences (here, one in Riverdale and one in West Palm Beach) in order to take advantage of the mutually exclusive benefits of two jurisdictions.
The Lipsmans concede that both Florida’s homestead exemption and New York City’s rent stabilization laws apply only to a primary residence. Here, the benefits of both were claimed. There are many bona fide arrangements in which one spouse can honestly take advantage of one state’s laws and the other spouse the other state’s. Spouses need not share a primary residence, and legitimate arrangements of that kind should be recognized. The open possibility, however, of manipulation and gaming of the system—as suggested by this record—is dismaying.
Chief Judge Kaye and Judges Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur with Judge G.B. Smith; Judge Rosenblatt concurs in a separate opinion in which Judge R.S. Smith also concurs.
Order affirmed, with costs. Certified question not answered upon the ground that it is unnecessary.