Opinion
March 23, 1971
Order of the Supreme Court, New York County, entered on July 31, 1970, annulling the determination of respondent-appellant, Commissioner of the Department of Rent and Housing Maintenance, and remitting the matter for further proceedings and investigation, reversed on the law, the determination of respondent Rent Commissioner reinstated, and the petition dismissed. Appellants shall recover of respondent $50 costs and disbursements of this appeal. In the first instance, the Rent Commission determined that the apartment at 907 Fifth Avenue was originally rented on October 1, 1950 for combined professional and residential purposes and was used predominantly for professional purposes initially and for quite some time thereafter. ( Confederated Props. v. Nosek, 2 A.D.2d 383.) The court at Special Term did not question this finding. Further, the petitioner-respondent, a physician, in a matrimonial matter conceded the predominantly professional use. The Rent Commissioner also determined that the current use came within the definition which exempted the apartment from the rent regulations. However, Special Term found the evidence on this question insubstantial and, therefore, the denial of petitioner's application arbitrary and capricious. In our view, the original valid exemption for professional use and the continuation of such use determined the issue, and the petitioner's attempt currently to maintain that the residential use predominates cannot affect the basic situation. (Cf. Vojda v. Prizep, 280 App. Div. 287.)
I dissent and vote to affirm on the opinion at Special Term. Justice and fairness support Judge DOLLINGER'S order. The Administrator should make inquiry as to predominant use, inclusive of facts relating to whether the original leasing was intended in good faith to be for professional use, and whether, upon the subsequent renewals, the landlord was aware of and acquiesced in any use of the premises for predominantly residential use before in effect permitting the landlord to increase the rent of this apartment from approximately the sum of $3,000 under rent control to the sum of $15,000 now demanded from the tenant.