Summary
In Matter of Schonbuch v. Abrams (1 A.D.2d 658) and in the well-considered opinion of M.M. LEVY, J., in Matter of Lipson v. Weaver (5 Misc.2d 435) the question arose but proof that the premises had ever been residential was lacking, so that decision of the particular question was obviated.
Summary of this case from Billings v. Freewalt Realty Corp.Opinion
December 13, 1955
Order unanimously reversed, with $20 costs and disbursements to the appellant, and the determination of the State Rent Administrator annulled, with costs. The record before the Administrator justified his findings that plans were not filed with the department of housing and buildings and a certificate of occupancy was not obtained and that the accommodations are entirely substandard. Subdivision 4 of section 9 of the State Rent and Eviction Regulations provides, however, that the regulations do not apply to "housing accommodations created by a change from a non-housing to a housing use on or after February first, nineteen hundred forty-seven". (See, also, State Residential Rent Law, § 2, subd. 2, par. [g], cl. 1; L. 1946, ch. 274, as amd.) The Administrator was in error in treating the present application as one to decontrol the premises. Here the apartment may not be decontrolled because it is exempt from control (cf. Matter of Fiesta Realty Corp. v. McGoldrick, 284 App. Div. 551, 557, revd. on procedural grounds 308 N.Y. 869). The record discloses that in 1952 the landlord converted the rear portion of a store into the subject apartment and it is, therefore, not subject to control and beyond the jurisdiction of the Administrator. ( Matter of Lo Presti v. McGoldrick, 284 App. Div. 827, affd. 308 N.Y. 706; Matter of Kruckel v. McGoldrick, 281 App. Div. 811.) Settle order on notice.
Concur — Breitel, J.P., Bastow, Botein and Rabin, JJ.