Opinion
October 20, 1970
Judgment entered on April 16, 1970, awarding judgment in favor of former tenant against landlord-owner, pursuant to section Y51-6.0 of the City Rent and Rehabilitation Law, after a nonjury trial, unanimously reversed on the law and on the facts, and the complaint dismissed. Appellants shall recover of respondent $50 costs and disbursements of this appeal. In accordance with an official Map Revision in the year 1960, pertaining to the planned widening of Second Avenue, Manhattan, and following the assurance in 1964 by the Director of Highway Planning that the widening plan would be imminently effectuated, the landlord-respondent stipulated with petitioner-tenant that she undertake to vacate her apartment prior to September 1, 1965, in consideration of the sum of $1,300. All this pursuant to the landlord's avowed intention of demolishing the building (an old law structure) and of erecting in its place, in accordance with filed plans, a new six-story apartment building with store frontage on Second Avenue. The tenant vacated her apartment and was successful in locating another, not unsuitable, in the same locale, at a not immoderate rental. But the landlord has not erected the new structure. Nor has the city fulfilled its plans in respect of widening Second Avenue. To the extent that the Trial Justice viewed the landlord as having acted in good faith when he undertook to evict the tenant, we are in accord. However, we do not think the tenant has been ill-treated. Nor do we believe the landlord should be penalized because he hesitated to erect a new structure at his peril, before the city had consummated its own plans. The record would indicate the present usage of the property has not resulted in a bonanza to the landlord, and the uncontradicted testimony is that he stands ever ready to build a new structure whenever the city effectuates its widening plan. It would be unduly coercive to expect him to go forward with the new building in a highly valued section of Manhattan, when the city has not acted, and may yet change or abandon plans first announced in 1960. Further, even if the landlord has profited by the present use of the property, not evident from the record, the Trial Court has found, and we agree, he has not acted fraudulently or improperly in any legal sense. Indeed, his initial freedom from any ulterior motive, pretense or guile and the subsequent change of circumstances, making the execution of his filed plans an oppressive hardship, together constitute a defense against the statutory damages, a question we do not reach. Any other conclusion would "clearly offend against common sense". (Cf. Kauffman Sons Saddlery Co. v. Miller, 298 N.Y. 38.) Thus, we should dismiss the petition.
Concur — Stevens, P.J., McGivern, Markewich and Steuer, JJ. [ 61 Misc.2d 781.]