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FRANCIS MCDONNELL v. SIR PRIZE CONTRACTING CORPORATION ET AL. (05/19/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


May 19, 1969

FRANCIS MCDONNELL, RESPONDENT,
v.
SIR PRIZE CONTRACTING CORPORATION ET AL., APPELLANTS

In a holdover proceeding to recover possession of a dwelling apartment, the tenant and undertenants appeal, by permission, from an order of the Appellate Term, Second and Eleventh Judicial Districts, dated December 20, 1968, which affirmed a final judgment of the Civil Court of the City of New York, County of Queens, dated March 20, 1968, in favor of the landlord.

Christ, Acting P. J., Brennan, Rabin, Hopkins and Benjamin, JJ., concur.

In our opinion, the landlord failed to establish that the violation in question can be removed only by eviction of the tenant and undertenants or that compliance with the legal requirements would be unduly burdensome or economically improvident (Matter of K & G Co. v. Reyes, 52 Misc. 2d 606, 609; Grier v. Fenty, 13 Misc. 2d 542, 543; H.I.M. Props. Corp. v. Gross, 6 Misc. 2d 666, 668; H. Casabianca, Inc. v. Connobbio, 205 Misc. 380, 383-384). There is no dispute that the tenant and undertenants did not create the condition which caused the violation (816 Fifth Ave. v. Purdy, 127 N. Y. S. 2d 695, 696.) It is also our opinion that the landlord's good faith in seeking eviction under subdivision c of section 52 of the New York City Rent, Eviction and Rehabilitation Regulations is a matter of relevant inquiry. Subdivision b of section 51 of the Regulations prohibits an attempt to remove a tenant because he has taken action authorized by the Rent Law or the regulations. Subdivision c of section 52 may not be used as a pretext for doing what subdivision b of section 51 forbids.

Disposition

Order and final judgment reversed, on the law and the facts, without costs, and petition dismissed, without costs. This determination is without prejudice to such application as the landlord may choose to make under sections 54 or 59 of the New York City Rent, Eviction and Rehabilitation Regulations.

19690519

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