Opinion
June 13, 1967
In this third article 78 proceeding, petitioner-appellant appeals from the judgment herein entered February 20, 1967, on the order dated January 10, 1967, dismissing the petition. On March 15, 1961, petitioner-landlord filed its application for a hardship increase pursuant to subdivision 5 of section 33 of the State Rent and Eviction Regulations. The Administrator rejected the sales price as the basis for the requested increase. The matter was remanded for reconsideration in accord with our opinion in 21 A.D.2d 192. The Administrator rejected the sales price for a second time. The ensuing article 78 proceeding resulted in a remand, with the direction to fix the rents on the basis of the sales price. ( 24 A.D.2d 79, affd. 17 N.Y.2d 679.) In this proceeding, petitioner-appellant consents that respondent Administrator may grant relief to any affected tenant in respect of the retroactive increases as required in the particular circumstances, based on a statement under oath disclosing his or her financial position and establishing financial hardship. In such circumstances, on consent of petitioner-appellant, respondent Administrator is directed to make such order as the interests of justice require in the particular case. We do not reach the question of the general authority of respondent Administrator to defer payment of retroactive rent increases. The rentals of Apartments 1B, 6E, 3J, and 3N are to be increased by the hardship increases affecting said apartments and the maximum rents increased accordingly, effective upon the expiration of the leases, as provided therein. The provision in the aforesaid leases for the addition to the rental of hardship increases resulting from pending applications therefor was a proper subject for negotiation between petitioner and its tenants. The respective leases affirmatively state that the tenant was advised of the pending application and consented to the further increases, if granted, effective, however, at the expiration of the lease. Special Term properly held, and we agree, the allocation of counsel fees to the second proceeding would be de minimis and would not significantly affect the quantum of the rentals. The judgment and order, dismissing the petition, are unanimously reversed, on the law and the facts, without costs and without disbursements, and the petition granted as herein provided. Settle order on notice.
Concur — Botein, P.J., Stevens, Capozzoli, Rabin and McNally, JJ.