Opinion
July 20, 1970
In a proceeding pursuant to article 78 of the CPLR to review a determination of the Commissioner of the New York State Division of Housing and Community Renewal, Office of Rent Administration, dated July 17, 1967, which (1) denied protests of petitioner-landlord against two orders of the Local Rent Administrator of the White Plains Local Rent Office that certain premises in Elmsford, New York, were under rent control because the landlord did not occupy the remainder of a single dwelling unit after renting two subunits of two furnished rooms each, and (2) directed petitioner to make refunds to the tenants, the Commissioner appeals from a judgment of the Supreme Court, Westchester County, entered November 21, 1967, which annulled the determination of the Commissioner. Judgment reversed, on the law, without costs; petition dismissed on the merits; and determination of the Commissioner confirmed. In our opinion, the exemption from rent control allowed under section 2 (subd. 2, par. [d]) of the Emergency Housing Rent Control Law (L. 1946, ch. 274, as amd.) requires more than a mere holding back of a room from rental to qualify as occupancy by the landlord. We are of the further opinion that there is substantial evidence in the record to support the determination of the Commissioner that the landlord did not reside at the premises at the times in question and did not occupy the remainder of the rented dwelling unit. This being so, we must reverse the judgment and confirm the Commissioner's determination ( Matter of Alabau v. State of New York Division of Housing and Community Renewal, 26 N.Y.2d 917; Matter of Colton v. Berman, 21 N.Y.2d 322; Matter of Maloof v. Herman, 13 A.D.2d 472; Matter of Golgrace Realty Co. v. City Rent and Rehabilitation Administrator, 50 Misc.2d 139; Matter of Mencher v. Gabel, 43 Misc.2d 928; Matter of Ferris v. Weaver, 8 Misc.2d 790). Christ, P.J., Rabin, Hopkins, Munder and Benjamin, JJ., concur.