Opinion
April 24, 1958
Appeal from the Municipal Court of the City of New York, Borough of Manhattan, MARIO G. DI PIRRO, J.
Hyman R. Shapiro for appellant.
Reuel M. Jordan for respondent.
The landlord sought to evict the tenant for illegal occupancy. It appears without successful contradiction that the tenant had leased rooms for single-room occupancy to five undertenants. This is clearly in violation of law (Multiple Dwelling Code of City of New York, § 3, subd. 5; Administrative Code of City of New York, § D26-3.0, subd. 5; Multiple Dwelling Law, § 248). The tenant introduced evidence to the effect that the landlord was not seeking the eviction in order to have the occupancy conform to the law but because she was disappointed in not procuring additional rent on account of the increased number of roomers. Assuming this to be true, as it may well be, it is immaterial. A landlord cannot waive a violation of law even by express waiver ( Revon Realty Co. v. Fixler, 66 N.Y.S.2d 30). And his motive in seeking to evict for a tenancy in violation of law is immaterial ( Chase Nat. Bank v. Tawaja, 204 Misc. 246; Wack v. Boutin, 81 N.Y.S.2d 281).
The fact that no administrative department has placed a violation against the building has no significance. The regulations which have been contravened were enacted to protect the lives and health of tenants. While the court has no duty to seek out such violations it cannot, when one is brought to its attention, ignore it and must implement it. Should a disaster in the shape of fire or epidemic follow on such overcrowding it would be no excuse that the court failed to enforce the law because the inspecting authorities took no action.
The final order should be reversed and final order directed for the landlord.
Though, as the Per Curiam recognizes, the court is not an enforcement agency, I should be unwilling to ignore or condone the nonobservance of statutory requirements, especially those prescribed to protect life and safety, even in the absence of notice of violation by the authorities charged with enforcement. The landlord here failed to establish any unlawful condition. The mere presence of persons in single-room occupancy does not of itself make out a violation; it is only when the other statutory requirements applicable to such occupancy are not met that the occupancy becomes illegal (Multiple Dwelling Law, § 248; Multiple Dwelling Code, Administrative Code of City of New York, § D26-3.7, subd. b; § D26-8.0). The landlord here made no attempt to prove that the physical condition of the premises from which he sought to evict the tenant did not conform to the statutory standards. Hence, I dissent.
STEUER, J.P., and HECHT, J., concur in Per Curiam opinion; HOFSTADTER, J., dissents in opinion.
Final order reversed, etc.