Opinion
April 17, 1950.
Present — Nolan, P.J., Carswell, Johnston, Adel and Sneed, JJ.
In a proceeding pursuant to article 78 of the Civil Practice Act to review a determination by the temporary city housing rent commission, final order denying appellant's application to direct respondents to issue a certificate of eviction unanimously affirmed, with $50 costs and disbursements. Appellant, the owner of an apartment house containing accommodations for 100 families, sought a certificate of eviction, alleging that a tenant who occupied a two and one-half room apartment with his wife and one child, and who had, when he entered into possession of the apartment, signed an application which stated that the apartment would be occupied by "husband, wife and child", had violated a substantial obligation of his tenancy by sharing his apartment with his brother and the latter's two infant children. The tenant contended that the situation complained of was due to his brother's domestic difficulties, which resulted in an order by the Domestic Relations Court placing the two children in the custody of the tenant's wife; that the situation was temporary, and that he was making every possible effort to find a larger apartment. Evidence was adduced before respondents' hearing officer sustaining the tenant's contentions, and the tenant offered to rent a larger apartment, formerly occupied by his brother in the same building, if appellant would permit him to do so. Such permission was refused. Before the hearing officer, the tenant's brother stated that he was leaving the tenant's apartment on the night of the hearing and would live in other quarters. Respondents found that the tenant had not violated a substantial obligation of his tenancy. Under the circumstances disclosed, the determination made by respondents had warrant in the record, a reasonable basis in law, was neither arbitrary nor capricious and, consequently, may not be disturbed. (Cf. Matter of Park East Land Corp. v. Finkelstein, 299 N.Y. 70.) Appellant's contentions that respondents' regulation which provides for the issuance of a certificate of eviction on the ground that a tenant is violating a substantial obligation of his tenancy is invalid, as an usurpation by an administrative agency of legislative power, and that respondents' regulations have never been lawfully promulgated, do not appear to have been advanced at Special Term. However, we find no invalidity in the regulation complained of, which serves to effectuate the evident purpose of the local law pursuant to which it was adopted. The contention that respondents' regulations have never been lawfully promulgated may not be sustained on the record presented.