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CIVIL COURT OF THE CITY OF NEW YORK, KINGS COUNTY 1969.NY.44013 <>; 308 N.Y.S.2d 173; 62 Misc. 2d 106 December 17, 1969 DAVID R. PATTERSON ET AL., PETITIONERS,v.FRIDA DAQUET, RESPONDENT Royall, Koegel & Wells (Richard N. Winfield, Stuart A. Jackson and James J. Maloney of counsel), for Citizens for Better Housing, amicus curiae. Irving Wallenstein for petitioner. Mary B. Tarcher, Allan Weisser and Kent Karlsson for respondent. Fred G. Moritt, J. Author: Moritt

Fred G. Moritt, J.

Author: Moritt

 This is a holdover summary proceeding to obtain possession of an apartment now occupied by the tenant. The essential basic facts were agreed to by the parties, namely, that the apartment is in a building containing more than six dwelling units; that the tenant originally went into possession pursuant to a written lease dated November 21, 1959, which lease was for a term of one year from December 1, 1959, to November 30, 1960; that since the expiration of said lease the tenant remained in possession with the permission of the landlord; that the rent stipulated in the lease was paid by the tenant; that the apartment is not under control of the New York City Rent and Rehabilitation Administration, an order of decontrol having been issued on June 16, 1958; and that a notice purporting to terminate the tenancy as of August 31, 1969, was duly served upon the tenant.

The landlord's basic contention was that the apartment in question is not now subject to control pursuant to Local Law No. 16 (Local Laws, 1969, No. 16 of City of New York) referred to as the (New) Rent Stabilization Law of the City of New York since Local Law No. 16 is unconstitutional.

This court held the so-called Rent Stabilization (Local) Law repugnant to both the Constitution of the State of New York and the Constitution of the United States on December 17, 1969, and promised to give its reasons.

At the outset, the court wishes to emphasize that what is not involved herein is the constitutionality of the old rent control laws pertaining to residential apartments in buildings that were constructed prior to February 1, 1947, etc.

The court heretofore granted a motion made by the law firm of Royall, Koegel and Wells, attorneys for Citizens for Better Housing, to appear amicus curiae. The court wishes to thank the said law firm for the oral arguments made by its Richard N. Winfield on December 17, 1969, and for the brief which the court received on January 7, 1970. Not only is the court grateful for their appearance, but has taken the liberty to make use of some of their brief. The "Rent Stabilization Law of 1969" (hereinafter "RSL"), was passed by the New York City Council on April 24, 1969, was approved by the Mayor on May 6, 1969, and became effective May 12, 1969. This local "law" amending the Administrative Code of the City of New York provides for a novel and unprecedented form of housing regulation. On its face, it authorizes "voluntary self-regulation" of the "housing industry" by an association of real property owners under the supervision of the New York City Housing and Development Administration (hereinafter "HDA").

Section 6.0 of the RSL provides for the organization of a real estate industry association having as members the owners of at least 40% of the dwelling units covered by the new laws. Such an association is required to adopt a code, in conformity with the terms and conditions of the RSL, for the regulation of rent increases and other landlord-tenant matters. In order to be recognized, such an association must register with HDA. However, HDA may not accept any association for registration unless the association has enacted a "code" which has been approved by HDA.

Title Y of chapter 51 of the Administrative Code of the City of New York (City Rent and Rehabilitation Law) is the New York City local law providing for standard rent control in the vast majority of residential dwelling units constructed before February 1, 1947. Section 4.0 of the RSL provides that dwelling units covered by the RSL will be deemed subject to standard rent control under the provisions of title Y unless the owner of such dwelling units becomes a member in good standing of an association registered with HDA.

The Legislature may, in the exercise of its police power, impinge to some extent upon normal constitutional rights and privileges during a temporary emergency in order to safeguard the public health and safety. Once such emergency conditions have terminated, the emergency regulations must also cease immediately.

The alleged emergency condition in housing accommodations in units constructed before February 1, 1947, has apparently persisted to the present day and therefore requires the continued application of the very stringent provisions of title Y of the Administrative Code. Presumably, if emergency conditions existed with respect to housing accommodations constructed after 1947, requiring regulations as strict as those required for pre-1947 construction, the City Council would not have hesitated in directly mandating that such regulations apply to all housing accommodations whenever constructed. The City Council did not do this.

If the sovereign State (via the Senate, Assembly and Governor) did not directly mandate that post-1947 construction be regulated in the same manner as pre-1947 construction, can the local power structure (City Council and Mayor) be permitted to achieve this purpose indirectly under the guise of authorizing allegedly "voluntary" self-regulation by a minority 40% of the owners of the dwelling units? Can a local legislature implicity therefore threaten to impose such regulations upon the other 60% unless they waive their constitutional rights by submitting to regulation by a private association with a high-sounding name having no governmental authority of any kind? I think not.

It is elementary that administrative officials, who have been given no direct authority by the Legislature to accomplish a specific goal, cannot attempt to obtain such results indirectly. (See, e.g., Matter of Nationwide Life Ins. Co. v. Superintendent of Ins., 16 N.Y.2d 237.)

Decisions by other courts of original jurisdiction have avoided the constitutional question. The courts which have sustained its validity have avoided the constitutional issue by holding that an owner of real property need not comply with the terms and conditions of the RSL unless he elects to do so of his own free will. This argument is based on the judicial contention that an individual owner of real property may "refuse" to join an association authorized by section 6.0 of the RSL. For example, in 8200 Realty Corp. v. Lindsay (60 Misc. 2d 248, 259-261), Mr. Justice Gellinoff stated that (p. 260): "The short answer to these contentions is that it is not the city, nor the State enabling act, nor Title YY which obligates the landlord to return moneys to tenants; it is the landlord's own association, which he has voluntarily joined, which compels him to do so. If he chooses not to join he does not have to agree to make the refund."

With all due deference to my learned colleague, any interpretation of the RSL to the effect that real property owners are offered a realistic choice must ignore the economic condition and the political climate of New York City today. Under section 4.0 of the RSL, refusal by a real property owner to join the association will subject all housing accommodations owned by him to the more onerous provisions of the City Rent and Rehabilitation Law (Administrative Code, ch. 51, tit. Y), the rent control statute regulating buildings constructed before February 1, 1947. The alleged "choice" offered to owners of real property is referred to as though such choice involved two alternatives offering approximately the same advantages and disadvantages. This is completely inaccurate. No one in the industry or in government truly considers a landlord's submission to regulation under the more onerous provisions of title Y -- the pre-1947 regulation -- as a "choice" which any landlord would "voluntarily" make. In ...

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