Opinion
February 26, 1962
In a proceeding under article 78 of the Civil Practice Act, to review and annul the determination of the State Rent Administrator (Temporary State Housing Rent Commission), dated March 15, 1961, denying petitioner's protest and affirming the Local Rent Administrator's order refusing to issue to her (petitioner) a certificate of eviction to enable her to prosecute a summary proceeding for the removal of a tenant (Louis Neer), the State Rent Administrator appeals from a final order of the Supreme Court, Kings County, made June 22, 1961 upon the decision of the court after a hearing, which: (1) granted the petition; (2) annulled said determination; and (3) directed him (the State Administrator or said commission) to issue the certificate of eviction. On an application for reargument, upon the papers submitted on the prior application and upon testimony adduced at an informal hearing, the Special Term on October 6, 1961 made an order granting reargument but adhering to its original order dated June 22, 1961. Order, dated June 22, 1961, reversed on the law and the facts, without costs; petition dismissed; and matter remitted to the State Rent Administrator for further proceedings not inconsistent herewith. Findings of fact which may be inconsistent herewith are reversed, and new findings are made as indicated herein. In our opinion, the said Administrator's determination, dated March 15, 1961, was based upon a finding that the subject premises were not being managed in violation of section 83 Mult. Dwell. of the Multiple Dwelling Law, in that the petitioner's (the landlord's) daughter and son-in-law, as well as a porter, all of whom in concert were carrying on the duties of a janitor, resided within 200 feet of the premises; and such finding cannot be held to lack a reasonable basis on the facts in the record before us. At the suggestion of the said Administrator and in the light of counsel's statement that a notice of violation of section 83 has been filed against the premises by the municipal authorities, further administrative proceedings should be conducted to give the petitioner (the landlord) the opportunity to furnish additional proof upon the issue of whether the premises are being maintained in violation of law, as well as upon the other issues. However, we are also of the opinion that action by municipal authorities may not properly be made a prerequisite for the issuance of a certificate of eviction in a proceeding brought for the purpose of obtaining an apartment for a resident janitor in order to correct a violation of section 83 Mult. Dwell. of the Multiple Dwelling Law. The existence of the violation, in and of itself, is compelling necessity for the issuance of a certificate to remove some tenant where no reasonable alternative apartment is available (cf. Matter of Levine v. Abrams, 1 A.D.2d 213, 219). No appeal has been taken from the order granting reargument. Nor have we elected to exercise our discretion under section 562-a of the Civil Practice Act, to review such order, in view of the fact that the recital of the matters considered therein specifies, in addition to the papers considered on the original motion, only the testimony adduced at an informal hearing; and we have not been furnished with a transcript or return as to such testimony. Beldock, P.J., Ughetta, Hill, Rabin and Hopkins, JJ., concur.