Judges： Dore, Shientag
Filed Date： 11/28/1949
Status： Precedential
Modified Date： 10/19/2024
(dissenting). The city rent commission is without power to adopt what has been characterized as a “ general policy ” to refuse a certificate of eviction in every case, regardless of circumstances, where a purchaser seeking such a certificate has, in connection with his purchase of the premises, given a lease to the seller, or to his nominee, of an apartment therein. Here, however, as part of the agreement of purchase, a lease was given to the seller and to his nominee (his parents) of two of the three apartments in the building occupied by them at the time of the sale, leaving only one free tenant, now sought to be evicted.
Under those circumstances, it cannot be said that the commission, in refusing a certificate of eviction on the ground that good faith was not established within the meaning of the emergency statute, was capricious, arbitrary or unreasonable; the court may not substitute its judgment for that of the commission (Matter of Keller v. Finkelstein, 274 App. Div. 890 [2d Dept., 1948]; Matter of O’Neill v. Finkelstein, 275 App. Div. 720 [2d Dept., 1949]).
Each case has to be decided on its own facts and not on the basis of any so-called ‘ ‘ general policy ’ ’ to which reference has been made. The instant case differs substantially from Matter of Stahl v. Coster (276 App. Div. 762), decided this day, where an eleven-family apartment house was sold and where a lease
Peck, P. J., and Cohn, J., concur with Dore, J.; Shientag, J., dissents and votes to affirm in an opinion in which Callahan, J., concurs.
Order reversed and motion granted. Settle order on notice.