Opinion
279 A.D. 26 107 N.Y.S.2d 734 SPOTLESS STORES, INC., Appellant, v. HELEN SMITH, Respondent. (And Nine Other Cases.) Supreme Court of New York, First Department. October 30, 1951
APPEAL, by permission of the Appellate Term of the Supreme Court in the first judicial department, from a determination of said court, entered May 7, 1951, which affirmed final orders of the Municipal Court of the City of New York, Borough of Manhattan (SHAPIRO, J.), dismissing the petition of the landlord in summary proceedings to recover possession of real property. (Nine proceedings were consolidated with the above-entitled proceeding for purposes of the trial and appeal.)
Prior to the commencement of the proceedings, the Temporary State Housing Rent Commission issued orders granting certificates of eviction on the ground that the landlord intended permanently to withdraw the housing accommodations from both the housing and nonhousing rental markets. At the trial in the Municipal Court the landlord introduced in evidence the orders of the commission granting the certificates of eviction and counsel for the tenants introduced in evidence the records of the Department of Housing and Buildings which revealed that an application for alteration of the building had been made by the landlord subsequent to the order of the Rent Commission. An entry on the specification sheet of the application stated that no change of occupancy or use had been issued.
COUNSEL
Paul R. Shaw of counsel (Solomon Weinstein with him on the brief; Paul R. Shaw, attorney), for appellant.
J. Howard Rossbach of counsel (Max Lerner and Lawrence J. Logan with him on the brief; J. Howard Rossbach, attorney), for respondent.
Per Curiam.
The dismissal of the summary proceedings would seem to be improper.
(1) The Municipal Court found that the landlord had abandoned its intention to withdraw the housing accommodations from the rental market. This finding was unwarranted on the basis of a mere entry in the specification sheet of an application for permission to alter the building. The landlord should have been given a full opportunity to explain such entry and show its actual significance.
(2) In any event, the Municipal Court should not have decided the issue as to whether there had been an abandonment of the purpose for which the certificates of eviction had been issued. We deem that the proper procedure under the law requires the Rent Administrator to decide questions of this kind. On a prima facie showing of intention to abandon such purpose the Municipal Court should stay the trial of any summary proceeding for a reasonable time in order to allow the tenant to apply to the Rent Commission for revocation of the certificate of eviction. The emergency statute and the rules adopted thereunder would appear to give the Rent Administrator power to entertain an application for revocation and allow him to waive any time limitation contained in the rules with respect thereto upon good cause shown. Certainly an abandonment of the basic intention or original purpose of the landlord occurring after expiration of the usual time for protest or review would constitute good cause for waiver of any limitation of time. And such abandonment would justify revocation, if established.
The determination of the Appellate Term and the final orders of the Municipal Court should be reversed and a new trial ordered, with costs to the appellant, in all courts, to abide the event. The trial of the summary proceedings may, however, be stayed for a reasonable period pending an application to the Rent Commission for revocation of the certificates of eviction, if the tenants be so advised. Settle order.
PECK, P. J., GLENNON, DORE, CALLAHAN and VAN VOORHIS, JJ., concur.
Determination of the Appellate Term and the final orders of the Municipal Court unanimously reversed and a new trial ordered, with costs to the appellant, in all courts, to abide the event. The trial of the summary proceedings may, however, be stayed for a reasonable period pending an application to the Rent Commission for revocation of the certificates of eviction, if the tenants be so advised. Settle order on notice.