Martin v. Weaver

Anthony J. Di Gtovanna, J.

This is an article 78 proceeding to annul the order of the respondent denying an order to decontrol the subject premises.

The petitioner landlord sought decontrol of the ground floor apartment at 192 Powell Street. The original petition was denied on May 14, 1957 and protest denied on August 13, 1957 on the ground that no additional housing accommodations resulted from certain alterations made in the premises (State Rent and Eviction Regulations, § 11). Since June 3, 1932 the certificate of occupancy has been that of a two-family house. In 1955 plans were filed with the Building Department to convert the premises into a three-family unit. Alterations were completed and a three-family certificate of occupancy issued on May 29, 1957 converting the premises into a three-family unit. Petitioner claims he spent $1,000 for the alterations. It appears certain from the record that although a two-family house, the basement apartment had been rented at various times so that actually at times three families occupied the premises.

The law is clear that in such circumstances the respondent had the right to deal with such property as a three-family dwelling and was not compelled to call it a two-family dwelling merely because a two-family certificate of occupancy had been issued. The substance of the findings of the respondent is that the alterations did not substantially convert the building to a three-family unit because it was usable as such and used as such before the alterations were made. On this record this court cannot state that the respondent was without facts upon which to base its denial of the petition. Therefore the determination of the respondent cannot be said to be arbitrary or capricious but, on the contrary, has support in the record.

Petition is dismissed. Submit order.