Opinion
279 A.D. 927 111 N.Y.S.2d 29 660 LOCUST STREET CORPORATION, Respondent, v. L. CORSAIR MACPHERSON, Appellant, and JOSEPH D. MCGOLDRICK, as State Rent Administrator, Intervener, Appellant. Supreme Court of New York, Second Department. March 17, 1952
Appeal by a statutory tenant from a final order of the City Court of Mount Vernon awarding possession of an apartment occupied by the tenant and directing the issuance of a warrant to evict. Final order reversed on the law, with costs, and petition dismissed, without costs. The landlord sought to evict the tenant for breach by the tenant of a substantial obligation of the tenancy, in that he had installed a television antenna on the roof of the building and placed airconditioning units in windows, which units extended beyond the building. Insofar as the provision of the lease that had expired are not in conflict with the provisions of the State Residental Rent Law (L. 1946, ch. 274, as amd. by L. 1951, ch. 443) and the Rent and Eviction Regulations governing evictions, and are not confined to the period of the lease, they are projected into the statutory tenancy. ( Wasservogel v. Meyerowitz, 300 N.Y. 125, 131.) The provisions of the lease by which the tenant covenanted not to drill holes or place nails in the premises or permit extensions beyond or upon the building, do not conflict with the statute or the regulations, and the landlord could resort to summary proceedings without a certificate from the State Rent Administrator. But the statute and the regulations (State Residential Rent Law, § 5; State Rent and Eviction Regulations, § § 52, 53) provide that before summary proceedings may be instituted a notice shall be served on the tenant to cure or cease the violation, and shall state the ground upon which the landlord relies for removal or eviction of the tenant and the facts necessary to establish the existence of such ground and the date when the tenant is required to surrender possession. The notice must be served one month before the date fixed in it for surrender of the premises. The notice here was fatally defective and the summary proceeding was unwarranted. (Froehlich v. Norton, 278 A.D. 952.) It is not possible to determine from the record whether the trial judge granted the final order on the ground that the installation of the antenna and the window units were both in violation of the covenants of the lease, or if only one installation was a breach of covenant. There was no dispute that permission had been given by the landlord to install the antenna, and a finding that it had not permitted the window units to be installed would be contrary to the weight of the evidence. Before the freeze date, March 1, 1950 (State Residential Rent Law, § 4), there was no withdrawal of permission to erect the antenna. The use of the roof on that date was, therefore, a service furnished by the landlord to the tenant on that date which the landlord was obliged to continue until an order by the State Rent Administrator (State Residential Rent Law, § 2, defining 'Housing accommodation', and § 4; Rent and Eviction Regulations, § 35, subd. 1). The landlord was not, therefore, entitled to a final order on the ground that the erection of the antenna constituted a breach of the covenants of the tenancy. Moreover, the landlord had applied to the rent administrator for an allowance for the permitted use for an antenna as an essential service furnished after the freeze date. That application was denied. The determination of the local administrator necessarily required a finding that the service was required on the freeze date. No protest was filed by the landlord and that determination precluded a final order because of the maintenance of the antenna. (Cf. Suppus v. Bradley, 278 A.D. 337.) However, the landlord did not apply for any allowance by reason of the window units. It could, under the statutes, institute proceedings to evict for a breach of the covenants. Whether there was a breach was a matter for judicial determination. The tenant could defeat the landlord if he established that the service was furnished on the freeze date. The record reveals that there was a question of fact as to whether the landlord had withdrawn any consent to the use of the windows for the units. But, because of the failure to serve a proper notice, the landlord was allowed, improperly, to proceed with the summary proceedings and, therefore, that question of fact and any other was not subject to determination.
Nolan, P. J., Johnston, Adel, MacCrate and Schmidt, JJ., concur. [See 279 A.D. 1023; 280 A.D. 790.]