Amalgamated Housing Corp. v. Luxenberg
| Citation | 8 Misc.2d 831,168 N.Y.S.2d 585 |
| Parties | AMALGAMATED HOUSING CORPORATION, Landlord, v. Jesse LUXENBERG, Tenant. |
| Decision Date | 17 June 1957 |
| Court | New York City Municipal Court |
Szold & Brandwen, New York City, for landlord.
Jesse Luxenberg, tenant, in person.
This is a holdover proceeding brought by the Amalgamated Housing Corporation, a limited dividend housing company, organized and existing pursuant to the Public Housing Law of the State of New York. The petition is based upon a certificate authorizing the commencement of these proceedings issued by the New York State Commissioner of Housing dated December 8, 1954. This certificate was issued pursuant to the Rules and Regulations of the Division of Housing in effect at the time of the filing of the application with reference to evictions from limited dividend housing projects, whereby it is provided that a mutual or cooperative housing company may evict a rental tenant when the facilities occupied by such tenant are desired for a stockholder or other person having a proprietary interest in such company (Paragraph 7 of the certificate issued by the Commissioner of Housing). The certificate granted to the landlord leave to 'purpose its remedies at law for the eviction of the tenant' and further provided that 'no action or proceeding shall be commenced for such purpose until a 30 day notice shall have been given to the tenant to find new accommodations, which period shall not commence prior to the service of a copy of this order on the tenant, such service to be made in the manner prescribed by the Civil Practice Act for the service of a precept in summary proceedings.'
A previous proceeding brought by the landlord against the tenant was dismissed upon the ground that the order of the Commissioner (referred to herein also as the 'certificate') was not served as prescribed by the Civil Practice Act for the service of a precept in summary proceedings in that a copy thereof had been left with a person at the premises, but an additional copy had not been mailed as required by Section 1421 of the Civil Practice Act. Immediately after the said trial, a copy of the certificate was delivered personally to the tenant while he was still in the courtroom on March 22, 1957. The tenant challenges the service of this order within the confines of the courtroom as being invalid.
The landlord served a 30-day notice upon the tenant to quit the premises dated January 7, 1957, on January 24, 1957, stating as follows:
'You are hereby notified, that the Landlord elects to terminate your tenancy of the premises above described now held by you under monthly hiring; and that unless you remove from the said premises on the 28th day of February, 1957, the day on which your term expires, the Landlord will commence summary proceedings under the Statute to remove you from said premises for the holding over after the expiration of your term.'
It further appears that the landlord accepted rent for the month of February 1957, after the service of the said notice to quit, namely, on February 18, 1957. The precept was issued subsequent thereto, on April 29th. The tenant contends that the acceptance of rent effected a waiver of the notice to quit.
The tenant also contends that the person on whose behalf the proceeding was brought, Philip Kuperberg, has been and is now occupying accommodations provided for him by the landlord pending these proceedings and that, therefore, this matter should be stayed pending a review by the Commissioner of the certificate.
With respect to the first contention, the Court is compelled to conclude, after review of the authorities, that the service of the order in the courtroom is not jurisdictionally defective. The exemption from service upon a person attending court extends only to those who reside beyond the territorial jurisdiction of the state. The case cited by the tenant, New England Industries, Inc. v. Margiotti, 270 App.Div. 488, 60 N.Y.S.2d 430, is a case in which service was made upon a nonresident. The Court agrees that the reason for the rule as set forth in the Margiotti case, namely, the maintenance of the authority and dignity of the court in order to promote the due and efficient administration of justice, applies equally to residents as well as non-residents, but this is a matter for the Legislature.
With respect to the second contention of the tenant, that acceptance of rent after the service of the notice to quit...
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