Rosen v. Temporary State Housing Rent Commission , 202 N.Y.S.2d 811 ( 1960 )

Appeal from a final order of the Supreme Court at Special Term, entered February 26, 1960, in New .York County, which dismissed a petition under article 78 of the Civil Practice Act to annul respondent’s determination denying certificates of eviction and to direct the issuance thereof.

Memorandum by the Court. Order, dated February 26, 1960, dismissing petition affirmed, with $20 costs and disbursements to respondent. Appellant, the owner of two old law tenements that have been operated as a single unit, seeks to review the action of the ,State Rent Administrator in refusing to issue certificates of eviction for the removal of the residential tenants in said-buildings. In addition to the residential apartments, the buildings in question contained three stores. Claiming that substantial violations had .been placed on the structures by the Buildings Department which could only be removed at a prohibitive cost, the owner applied pursuant to section 59 of the State Rent and Eviction Regulations, to withdraw the residential portions of the buildings from the rental market. The stores were to be continued to be rented. The landlord’s application was rejected iby the Administrator on the grounds (1) that the owner is not permitted under section 59 of the regulations to remove only the residential tenants while continuing the commercial tenants, and (2) that the landlord’s claim of economic hardship is refuted by failure to apply to the City of New York for .tax abatement. In Matter of New Year Realty Corp. v. Herman (11 A D 2d 643), this court held that it was erroneous on the part of the Administrator to assume that landlord’s failure to seek tax abatement barred the granting of an application under section 59. However, it was sufficient to warrant a denial of the landlord’s application that leave was being-sought to withdraw only the residential part of the buildings while continuing to rent the commercial portions. To qualify under section 59 there must be proof of good faith to withdraw the entire .building without any intent to rent or sell all ,or any part of the land or structure. (Mercantile Enterprises v. Weaver, 3 Misc 2d 989, affd. 3 A D 2d 932, affd. 4 N Y 2d 375; Suppus v. Bradley, 278 App. Div. 337.) Under the circumstances, the Administrator properly refused to grant the certificates of eviction.