Costa v. Weaver , 168 N.Y.S.2d 529 ( 1957 )

Thomas E. Morrissey, Jr., J.

Proceeding to review the determination of respondent denying a certificate of eviction.

On April 26,1957 petitioners filed an application for a certificate of eviction to obtain possession of the tenant’s apartment for use and occupancy by their daughter, her husband and their two children, on the ground of an immediate and compelling necessity in that the building in which the daughter and her family presently resided had been condemned by the city for a school site and was to be demolished, and that title vested in the city on April 17, 1957. The tenant opposed the application on the ground that it was not made in good faith. On June 27, 1957 the local rent administrator denied the application on the ground that the landlords had failed to establish the existence of an immediate and compelling necessity, such denial being without prejudice to the renewal of the application after the city had taken definite steps to remove the landlords’ daughter. The landlords’ protest was denied on September 18, 1957, almost five months after the application was filed. It is thus seen that considerable time elapsed between the filing of the application and the determination thereof. In the meantime, the landlords’ daughter and her family must reside in a building which has been condemned and the city may serve a removal notice at any time. The fact is the building has been condemned, title is vested in the city and the occupants of said building may be ordered to remove at the city’s pleasure. In such case petitioners must-institute a new proceeding, which, notwithstanding respondent’s indication that it would lie expedited, would take some time to process through the local rent administrator and thereafter respondent on a protest, probable application for a review to this court and the possible appeal from a denial of such review by this court. Furthermore, petitioners would be unable to institute summary proceedings to oust the tenant until all of ’the legal proceedings were completed with the tenant possibly obtaining a stay of the warrant of dispossess.

Under all the circumstances, the determination of respondent is arbitrary and capricious. The petition is granted and respondent directed to issue a certificate of eviction to petitioners.

Settle order on notice.