Opinion
May 24, 1949.
Present — Dore, J.P., Cohn, Callahan, Van Voorhis and Shientag, JJ.;
If the plaintiff's possession of the premises was only constructive for the purpose of subletting to others, we are agreed that the plaintiff would not be entitled to the protection of the emergency rent laws ( WMCA, Inc., v. Blockfront Realty Corp., 272 App. Div. 800). However, it is not clear on the face of the pleadings or from the admission of facts in the affidavit of the plaintiff's president given in lieu of examination before trial that the plaintiff was merely an entrepreneur of space during all of the period involved in the action. Under the circumstances we think that the question as to whether the plaintiff has a cause of action should await the trial or a motion for summary judgment, when the facts concerning the plaintiff's possession and use of the premises may be more fully developed. Judgment and order reversed, with $20 costs and disbursements to the appellant, and defendant's motion denied.
Plaintiff's contention is that plaintiff used and occupied the premises for business purposes during the period of alterations and that "the alterations were in fact its business". On the admissions made by plaintiff in which no such state of facts was set forth or claimed the court properly dismissed pursuant to section 476 of the Civil Practice Act. It is clear that plaintiff's possession was constructive only and the principle of WMCA, Inc., v. Blockfront Realty Corp. ( 272 App. Div. 800) is applicable. I dissent and vote to affirm. [See ante, p. 646; 276 App. Div. 893.]