Opinion
276 A.D. 153 93 N.Y.S.2d 207 178TH ST. REALTY CORPORATION v. COSTER et al. Supreme Court of New York, First Department December 12, 1949
Proceeding in the matter of the application of 178th Street Realty Corporation against Charles G. Coster and others for a review of order of commission denying a certificate of eviction.
From an order entered in the Supreme Court, Bronx County, Edward R. Koch, J., annulling a determination of the commission and directing it to issue a certificate of eviction, the commission appealed.
The Appellate Division, in a Memorandum by the Court, held that it was in no position to determine whether there was reasonable ground for determination of the commission and modified and remitted the matter to the commission for disposition as indicated in the opinion.
Where the record did not show what arrangements the tenant had made concerning the use and occupancy of the demised premises in alleged violation of the terms of the lease, by strangers to the lease, or what the tenant received therefor and when if at all such unauthorized user was terminated, nor any finding by the commission with respect to such controverted issues, the reviewing court was not in a position to determine whether there was reasonable ground for the determination of the commission, and order annulling the determination of the commission in refusing to issue a certificate of eviction would be modified and the matter remitted to the commission for disposition in conformity with opinion.
Julius Raffelson, New York City, of counsel (Joseph Jay, Alfred Weinstein and Cyril L. McDermott, New York City, with him on the brief; Nathan W. Math, New York City, attorney), for appellants. Louis B. Frutkin, New York City, for respondent.
Before PECK, P. J., and GLENNON, CALLAHAN, VAN VOORHIS and SHIENTAG, JJ.
PER CURIAM.
The record does not show with any degree of clarity or definiteness what arrangements the tenant made concerning the use and occupancy of the demised premises, in violation of the terms of the lease, by strangers to the lease, or what the tenant received therefor, and when, if at all, such unauthorized user was terminated. Nor does the record contain any finding by the Commission with respect to such controverted issues.
The case of Matter of Park East Land Corp. v. Finkelstein, 299 N.Y. 70, 85 N.E.2d 869, does not stand for the broad proposition that a subletting contrary to the terms of a lease of premises for residential purposes, or an unauthorized occupancy of such premises would, under no circumstances, constitute a substantial violation of the lease warranting the issuance of a certificate of eviction. That decision holds merely that not every technical violation of a lease of residential property with respect to user requires the issuance of a certificate of eviction. Under the facts of that case, as fully set forth in the opinion of Fuld, J., it was held that the technically unauthorized use did not constitute a substantial violation and that the action of the Rent Commission in so holding was neither arbitrary nor capricious.
It becomes important, therefore, in cases of this type, to have the facts concerning the alleged unauthorized use and occupancy fully developed at a hearing, and to have the Commission make specific findings with respect thereto or that the record shall indicate clearly on the basis of what facts the Commission has acted, particularly where there is a conflict in the testimony or proof, or where varying inferences may be drawn therefrom. Only in that way is a reviewing court in a position to determine whether there is reasonable ground for the determination of the Commission.
Order annulling the determination of the City Rent Commission in refusing to issue a certificate of eviction should be accordingly modified, without costs, and the matter remitted to that Commission for disposition as indicated in this opinion.
Determination unanimously modified, without costs, and the matter remitted to the Temporary City Housing Rent Commission of the City of New York, for disposition as indicated in the opinion herein.
Settle order on notice.
All concur.