339 Lexington Avenue Corp. v. Gabel , 41 Misc. 2d 474 ( 1963 )

Francis X. Conlon, J,

Plaintiff moves for a temporary injunction restraining the defendants from further proceeding before the respondent District Director and the respondent Administrator, and in the actions pending in the Civil Court of the City of New York, The defendant Administrator and the defendant District Director cross-move pursuant to section 1003 (subd. [a], par. 7) and rule 3211 of the Civil Practice Law and Buies for dismissal of the action on the ground of misjoinder and legal insufficiency of the complaint.

The subject premises consist of a cellar used for storage, a basement as a store, a first sfory as an office and for storage, a second-story office and one apartment and a third-story apartment. In the Ciyil Court, the individual defendants, occupants of the housing accommodations, have instituted actions to recover overcharges. Maximum rents have been fixed, on the basis of controlled premises. This action is brought under the Emergency Business Space Rent Control Law (L. 1945, ch. 314, as amd.) for a judgment of decontrol on the 60% to 40% rule. Jurisdiction is exclusive in this court. The individual defendants consent to a stay but insist the rentals to be deposited should be the maximum rentals and not the lease rentals. In a prior proceeding before the District Director, a finding was made: “ that sixty per centum (60%) of the total rentable area and sixty per centum (60%) of the total number of units are lawfully occupied as business space, and that the housing accommodations contained in subject building are not subject to the Emergency Housing Rent Control Law.”

On protest, the finding was rejected as basis of power in the Administrator to decontrol. At the time the premises were put in their present state, there was no requirement for approval of conversion. Since lack of power to administer is here asserted, the court should entertain the action against all defendants. Also, since equitable relief is requested upon some showing that the premises are subject to decontrol, the court should do what is required for the protection of all the parties,

Accordingly, the motion is granted and the full lease rentals will be deposited, The cross motion is denied. The surety company bond will be posted for each of the individual defendants in the sum of $1,000.