Opinion
March 3, 1952.
On May 17, 1951, the Temporary State Housing Rent Commission, by its local rent administrator, denied petitioner's application for a certificate authorizing the eviction of respondent tenant from a seven-room apartment in a two-family house owned by petitioner and her daughter, on the ground that the evidence did not establish that the landlord was proceeding in good faith. That determination was affirmed by the State Rent Administrator on August 7, 1951, after protest duly filed by petitioner, the Administrator similarly holding that petitioner failed to establish that she sought in good faith to recover possession of said housing accommodations. Petitioner then instituted the instant proceeding under article 78 of the Civil Practice Act to review the determination of the State Rent Administrator. The Special Term hearing the application remitted the matter to the Administrator for a statement of the findings of fact upon which he based his conclusion that petitioner had failed to establish good faith. In compliance with that order, the Administrator submitted findings and conclusions to the effect that petitioner sought possession of the housing accommodations in good faith for her own occupancy. Based on those findings, petitioner moved for an order directing the issuance of a certificate of eviction, which application was referred to the Justice who heard the first application and who, by stipulation of the parties, was subsequently authorized to render his decision upon the original application, as if the decision had been held in abeyance pending the receipt of the Administrator's findings; and the tenant was permitted to intervene in the proceeding. Thereafter, the court considered the evidence, overruled some of the findings made by the Administrator, made new findings, held that the Administrator's determination that petitioner had failed to establish good faith was proper, and denied the petition. Order, insofar as appealed from, reversed on the law and the facts, with $10 costs and disbursements, petition granted, without costs, and the State Rent Administrator directed to issue a certificate of eviction as prayed for in the petition. The findings by the Special Term that the landlord "is seeking this apartment, not for her own use, but to effectuate the conversion of this house into a multiple dwelling" and that "the landlord did not act in good faith" are reversed. As the matter was finally presented to the Special Term, the record contained findings of fact, warranted by substantial evidence, indicating that petitioner in good faith sought possession of respondent tenant's apartment for her own occupancy. Upon those facts, respondent Administrator's order affirming the denial of the certificate of eviction was arbitrary and capricious and should not be permitted to stand. Under the circumstances presented, the Special Term could not substitute its judgment as to the facts for that of the Administrator. (Cf. Matter of Kaplan v. McGoldrick, 279 App. Div. 615; Matter of Simon v. McGoldrick, 279 App. Div. 760; Matter of Natalicchio v. McGoldrick, 279 App. Div. 796.) Matter of Cupo v. McGoldrick ( 278 App. Div. 108) is distinguishable in its facts. Nolan, P.J., Carswell, Johnston, Adel and MacCrate, JJ., concur.