Drinkhouse v. Parka Corp.

Decision Date24 May 1957
Citation3 N.Y.2d 82,164 N.Y.S.2d 1,143 N.E.2d 767
Parties, 143 N.E.2d 767 Michael F. DRINKHOUSE, Respondent, v. PARKA CORPORATION et al., Appellants.
CourtNew York Court of Appeals Court of Appeals

Sidney M. Wittner, New York City, for appellants.

Henry Hirsch, New York City, for respondent.

VAN VOORHIS, Judge.

This is an appeal by permission of the Appellate Division, First Department, from its order unanimously affirming two Special Term orders, of which one denied defendants' motion for judgment on the pleadings dismissing the complaint under rule 112 of the Rules of Civil Practice, and the other denied a similar motion for summary judgment dismissing the complaint under rule 113.

The case has been here before on appeal from a declaratory judgment (combined with injunctive relief) determining that plaintiff Drinkhouse was a subtenant of an apartment at 67 Park Avenue, Manhattan (Parka Corp. v. Drinkhouse, 281 App.Div. 858, 119 N.Y.S.2d 479, affirmed 305 N.Y. 885, 114 N.E.2d 430). The upshot of that decision was that although the apartment had been surrendered by the original tenant, nevertheless Drinkhouse had become her subtenant entitled to the protection of the State Residential Rent Law (L.1946, ch. 274, as amended, McK.Unconsol.Laws, § 8581 et seq.

The injunctive relief in the declaratory judgment consisted of the following mandate: 'That the plaintiff, Parka Corporation, its agents, servants or employees, be and they hereby are enjoined and restrained from depriving defendant (Drinkhouse) of his right to resume full and complete possession and occupancy of said apartment unless and until defendant be ordered removed from said apartment by a court of competent jurisdiction.'

The declaratory judgment with its accompanying injunctive relief was entered January 8, 1952, and, as stated, was affirmed in all courts. The complaint in the present action alleges that on June 30, 1951, Parka Corporation and Forelli, its managing agent, ejected Drinkhouse from said apartment in breach of his statutory subtenancy.

After the former action had been decided by Special Term, Parka offered to readmit Drinkhouse into possession pending appeal, provided that he would stipulate that it was without prejudice and that he would honor the ultimate decision on appeal. These conditions would have imposed no greater obligation than would have been incumbent on Drinkhouse anyhow, but he refused to sign such a stipulation. In order to minimize damages, Parka rented the apartment to another tenant, who agreed to vacate if the Court of Appeals affirmed, which he did when that occurred.

Drinkhouse proceeded in the former action against Parka by contempt for violating the injunction, but the Appellate Division held (282 App.Div. 676, 122 N.Y.S.2d 814): 'In view of the offer by the plaintiff to permit the defendant to take possession subject to his vacating in the event of reversal of the prior judgment, we think that the finding of a willful contempt is unwarranted.'

Drinkhouse has now instituted this separate action for damages on account of his dispossession by Parka on June 30, 1951 until his resumption of possession in July, 1953 after the former decision by this court. This complaint alleges two causes of action, one for damages by reason of Drinkhouse's removal from possession in violation of the State Residential Rent Law, and the other for treble damages under section 535 of the Real Property Law, Consol.Laws, c. 50.

Parka and its manager argue on this appeal that inasmuch as Drinkhouse was a statutory tenant or subtenant, having no contractual right to possession under any rental arrangement, whatever right to damages he may have must be based upon some statutory provision in the Rent Law expressly granting damages to him in this contingency. In support of this contention appellants cite David v. Fayman, 298 N.Y. 669, 82 N.E.2d 404; Rosner v. Textile Binding & Trimming Co., 300 N.Y. 319, 90 N.E.2d 481; Schwartz v. Sterling Drug., Inc., 300 N.Y. 493, 88 N.E.2d 723 and Magonigle Trucking Co. v. Tambini, 302 N.Y. 617, 96 N.E.2d 900.

In our view, appellants' position is well taken. The principle of Rosner v. Textile Binding & Trimming Co., 300 N.Y. 319, 90 N.E.2d 481, supra, is applicable here. That case was decided under subdivision (d) of section 8 of the Commercial Rent Law (L.1945, ch. 3, as amended, McK.Unconsol.Laws, § 8528(d)). That section, and the corresponding section of the Business Rent Law (L.1945, ch. 314, as amended, McK.Unconsol.Laws, § 8558(d)), it will be recalled, authorize damages if a tenant is removed after the commencement of dispossess proceedings which are maintained on the assertion that the landlord requires possession of the premises for the landlord's immediate and personal use. If such a contention is made by a landlord in bad faith, which may be evidenced by failure to resume possession within 30 days, a statutory right to damages is conferred upon the dispossessed tenant. In Rosner the tenant vacated under threat of the landlord, but before dispossess proceedings had been instituted. It was held that subdivision (d) of section 8 of the Commercial Rent Law applied only after legal proceedings had been begun, and that no cause of action lay for common-law fraud inasmuch as the remedy provided by subdivision (d) of section 8 was exclusive. The following quotation from the opinion by Judge Desmond is especially pertinent here: 'Plaintiffs argue, however, that regardless of the sufficiency of their first, or statutory, cause of action, they have pleaded, in their second count, a good common-law fraud case. The decisions are to the contrary. David v. Fayman, 298 N.Y. 669, 82 N.E.2d 404, and Rosenbluth v. Sackadorf, 298 N.Y. 761, 83 N.E.2d 158, necessarily mean that no action for fraud arises from such facts. Both those cases involved residential, not commercial, space, and, since those cases arose before the enactment in 1948, L.1948, ch. 213, of section 1444-a of the Civil Practice Act, residential tenants had no such right to sue as was, and is, given tenants of commercial property by the above-quoted subdivision (d) of section 8 of the Commercial Rent Law. Both plaintiff David and plaintiff Rosenbluth had been evicted from their statutory tenancies, on petitions containing knowingly false statements, by their respective landlords (defendants), that the landlord intended * * * in the Rosenbluth case, supra, to make alterations and improvements to the rented apartment. The holding in each case was that a tenant, evicted as the result of such false allegations had, in the absence of express statutory grant, no right of action at all.' 300 N.Y. 319, 324, 90 N.E.2d 481, 483.

The sentence pointing out that in the David and Rosenbluth cases, supra, the plaintiff had no relief inasmuch as section 1444-a of the Civil Practice Act had not then been enacted (analogous to Commercial Rent Law, § 8, subd. (d), in the case of residential property) tends to indicate that in the absence of an enabling statute Drinkhouse has no cause of action here. Without a provision granting damage for the removal of a statutory tenant there is no remedy, and, where such a statute exists, the remedy can be only that which the statute prescribes. This is in accordance with the 'familiar rule in the construction of statutes that where a new right is created, or a new duty imposed by statute, if a remedy be given by the same statute for its violation or nonperformance, the remedy given is exclusive' (Seely v. Tioga County Patrons Fire Relief Ass'n, 165 App.Div. 685, 689, 151 N.Y.S. 126, 129, citing City of Rochester v. Campbell, 123 N.Y. 405, 414, 25 N.E. 937, 939, 10 L.R.A. 393; Kingswood Management Corp. v. Salzman, 272 App.Div. 328, 330, 70 N.Y.S.2d 692, 693).

It therefore becomes incumbent upon us to examine the State Residential Rent Law to discover whether a statutory authorization for damages has been included, and, if so, to determine whether it is being pursued in the instant action. The wrong charged by Drinkhouse does not consist in the procurement of an eviction certificate or dispossess order in bad faith, consequently section 1444-a of the Civil Practice Act (mentioned in Judge Desmond's opinion in Rosner, supra) has no application. The particular wrong charged against Parka and its manager is entering Drinkhouse's apartment and locking him out. It has, of course, been declared by the former judgment that Drinkhouse had acquired the status of a statutory subtenant, and therefore could not be dispossessed except pursuant to the State Residential Rent Law. Consequently the act of the landlord in locking him out was in violation of statute, although it was not an invasion of any property right of Drinkhouse. The principal lease had ended, and he held no contractual or vested property right under the law of landlord and tenant. The landlord was prohibited from removing him for the benefit of society at large during the housing emergency.

'A statutory tenant holds over not because he has any property right or estate in the premises, but because the emergency laws forbid his eviction.' (Wasservogel v. Meyerowitz, 300 N.Y. 125, 132, 89 N.E.2d 712, 715, per Desmond, J.) We must look only to the provisions of the emergency act in order to ascertain whether Drinkhouse is entitled to any relief and what relief may be granted to him. Section 11 of the State Residential Rent Law is entitled 'Enforcement'. Subdivision 5 grants to tenants the right to sue for overcharges in excess of the emergency rent and attorneys' fees, including as much as treble the overcharge in case of willful violations. Whatever Parka may have done to Drinkhouse, he was not charged with excess rental. He was not charged at all, and paid no rent during the period...

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