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MATTER BROADWAY-AMSTERDAM ASSOCIATES v. FREDERIC S. BERMAN (03/18/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT


March 18, 1969

IN THE MATTER OF BROADWAY-AMSTERDAM ASSOCIATES, RESPONDENT,
v.
FREDERIC S. BERMAN, AS COMMISSIONER OF THE DEPARTMENT OF RENT AND HOUSING MAINTENANCE, RESPONDENT, AND MAXWELL S. SCHNELLER, INTERVENOR-APPELLANT

Concur -- Eager, J. P., Capozzoli, McGivern and Steuer, JJ.

The Commissioner determined that "the maid's room is properly excluded in counting the number of rooms comprising apartment 6-F * * * [Therefore], * * * the subject apartment 6-F contains only five rooms, exclusive of the kitchen and two bathrooms by reason whereof it fails to qualify for a certificate of eviction under the provisions of ยง 57 of the Regulations" (Commissioner's order of January 12, 1968). The small "maid's room" is separated from the tenant's apartment by a public hallway which leads to a service elevator and stairs. To reach that room the tenant must leave his apartment via a kitchen door and cross the public hallway. Said room will not become a part of either of the two apartments which would result from the proposed subdivision of apartment 6-F. There being a rational basis and substantial support in the record for the Commissioner's conclusion that apartment 6-F was not "under-occupied" within the meaning of section 57 of the Rent, Eviction and Rehabilitation Regulations, Special Term erred in substituting its judgment for that of the Commissioner (Matter of Mounting & Finishing Co. v. McGoldrick, 294 N. Y. 104). Moreover, as we had recent occasion to point out, the general rule is that an "administrative agency's interpretation of its own regulation is to be afforded controlling weight" (Matter of Romanow v. City Rent & Rehabilitation Administration, 31 A.D.2d 899).

Disposition

Judgment, entered on August 13, 1968, setting aside an order of the Rent Commissioner and directing him to reinstate a certificate of eviction previously granted, unanimously reversed, on the law, application denied and petition dismissed, without costs and without disbursements.

19690318

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