ASCO Equities, Inc.
APPEAL from an order of the Supreme Court at Special Term (RABIN, J.), entered June 23, 1954, in Bronx County, in a proceeding under article 78 of the Civil Practice Act, which annulled a determination of appellant, as State Rent Administrator, denying certificates of eviction sought by respondent, and remitted the matter to appellant for further proceedings.
Beatrice Shainswit of counsel (Walter S. Fried, attorney), for appellant.
Morris Wagman, attorney (Irving Sheinfeld with him on the brief), for respondent.
The Rent Administrator appeals from an order at Special Term, in an article 78 proceeding, annulling the administrator's denial of certificates of eviction to the landlord to remove tenants. Special Term held that landlord had an unqualified right to withdraw his property from the rental market and that, insofar as section 59 of the Rent and Eviction Regulations of the Temporary State Housing Rent Commission
imposed any conditions other than good faith as to the landlord's expressed intention, it was invalid. For reasons that will be set forth, the order should be reversed, and the determination of the Rent Commissioner reinstated, but with leave to the landlord to make a new application under the modified section 59.
Landlord owns a three-story building containing two six-room apartments and a ground floor store. After an application for a rent increase, which was granted only in part, and with which landlord was dissatisfied, it made the present application for certificates to evict the two occupant tenants, on the ground that it wished to permanently withdraw the premises from the rental market. In the administrative proceeding landlord claimed that $14,000 would be required to rehabilitate the building, but the Rent Administrator found that this claim was not supported by the evidence. Apart from this unsustained claim, the proof showed that the property was a profitable one. There was also no showing or claim that there were any burdens or hardships on landlord in the operation of the property. Landlord relies, however, in the article 78 proceeding, on its asserted right to withdraw its property from the rental market, unconditionally and unqualifiedly, except for the genuineness of its intention to so withdraw its property from the market.
The statute provides: 'Nothing in this act shall be construed to require any person to offer any housing accommodations for rent, but housing accommodations already on the rental market may be withdrawn only after prior written approval of the state rent commission, if such withdrawal requires that a tenant be evicted from such accommodations'. (State Residential Rent Law, § 10, subd. 4; L. 1946, ch. 274, as amd. by L. 1951, ch. 443.)
The question raised is whether the right to withdraw occupied housing accommodations is substantially qualified by the requirement that the landlord must obtain certificates of eviction for the occupant tenants with the 'prior written approval of the state rent commission', meaning that the landlord must justify the withdrawal of the property from the rental market; or whether that approval must be forthcoming if the landlord reasonably satisfies the rent commission that he intends in fact to effect such withdrawal. Put another way, the question is whether the landlord must justify to the rent commission his withdrawal or whether he merely need satisfy the rent commission that he in fact intends what he proposes to do. For reasons
that will appear, he need only show the latter, but, on the other hand, he must do so by objective criteria. [a1]
Pursuant to its broad rule-making power the State Rent Commission enacted the following regulation to implement ...