In re Trustees of Columbia University , 176 N.Y.S.2d 823 ( 1958 )

Thomas A. Aurelio, J.

The tenant-respondent moves for dismissal of the petition pursuant to subdivision 1 of rule 107 of the Buies of Civil Practice upon the ground that the court does not have jurisdiction of the subject of the proceeding. It has been instituted to obtain relief pursuant to section 4 of the Business Bent Law (L. 1945, ch. 314, as amd.). Lack of jurisdiction is based upon a final order in a proceeding based upon the same section and dated October 10, 1956 and by which the landlord-petitioner was to refrain from commencing a proceeding pursuant to section 4 prior to November 1, 1957. This proceeding was commenced on October 21, 1957. The court has jurisdiction of the subject matter. The objection, if any, and if cognizable pursuant to rule 107, would fall under subdivision 8 thereof and by reason of the fact that an answer has long since been interposed the motion would be untimely. Of course, the purpose of the cited clause contained in the prior order was to assure that no rent adjustment could be sought or obtained for any period prior to November 1,1957. Some prejudice may well arise to the tenant and possibly the petition was instituted prior to November 1,1957 to secure the benefit of a rent increase commencing as of November 1, 1957 by giving effect to the final order retroactively to the time of the commencement of the proceeding. Whether the final decree shall be made effective as of November 1, 1957 or some time thereafter, of course may be considered upon trial and determination thereon.

The motion is denied.