Opinion
April 28, 1952.
In an action by tenants, under section 205 of the Housing and Rent Act of 1947, as amended (U.S. Code, tit. 50, Appendix, § 1895), to recover a treble amount of excess rents, order granting plaintiffs' motion for summary judgment reversed on the law, with $10 costs and disbursements, and motion denied, without costs. The statute is to be interpreted as consistent with Federal court decisions; and accordingly the action is for damages and not for a penalty. ( United States v. Harris, 89 F. Supp. 537; Porter v. Montgomery, 163 F.2d 211; Fields v. Washington, 173 F.2d 701.) It follows that summary judgment is not prohibited by subdivision 3 of rule 113 of the Rules of Civil Practice. Von Doemming v. Cross (81 N.Y.S.2d 35); Wachtel v. Schelberg ( 186 Misc. 406) and several other cases similarly decided, did not consider the Federal court interpretations of the statute. The papers establish that the granting of the motion for summary judgment was not proper inasmuch as appellant is entitled to prove that the violation was not willful. Johnston, Acting P.J., Adel, Wenzel, MacCrate and Schmidt, JJ., concur.