Dunbar Apartments Co. v. Gabel

• Decision Date: 04 February 1965
• Parties: Application of DUNBAR APARTMENTS CO., Petitioner-Appellant, for an order pursuant to Article 78 of the Civil Practice Law and Rules, v. Hortense W. GABEL, as City Rent and Rehabilitation Administrator, Respondent- Respondent.
• Court: New York Supreme Court — Appellate Division

Page 17

256 N.Y.S.2d 17

23 A.D.2d 541

Application of DUNBAR APARTMENTS CO., Petitioner-Appellant for an order pursuant to Article 78 of the Civil Practice Law and Rules, v. Hortense W. GABEL, as City Rent and Rehabilitation Administrator, Respondent- Respondent.

Supreme Court, Appellate Division, First Department.

Feb. 4, 1965.

Bernard Buchwald, New York City, of counsel (Barry A. Tessler, New York City, with him of the brief), for petitioner-appellant.

Florence R. Zimmerman, New York City, of counsel (Beatrice Shainswit, New York City, attorney), for respondent.

Before VALENTE, J. P., and STEVENS, EAGER, STEUER and STALEY, JJ.

PER CURIAM.

Order and judgment dismissing the petition and affirming the determination of the respondent denying petitioner's application to discontinue supplying electricity to its tenants as part of the monthly rent affirmed on the law and on the facts with $50 costs to respondent. In 1952 the petitioner applied for a rent increase to include unmetered electric current as an essential service included in tenants' maximum rents which application was granted. The basis for granting petitioner's application in 1952 was in consideration of petitioner's treating electric current as an essential service included in the maximum rent and converting it from a varying to a fixed amount. On the present application the petitioner states its reason for the requested change as 'convenience only' and it has not submitted any evidence to form a basis for making the requested change. On the facts presented to the respondent on this application the denial of the request was proper and not arbitrary or unreasonable. (Matter of Meyfam Management, Inc. v. Weaver, 15 Misc.2d 687, 182 N.Y.S.2d 987.)

All concur except STEVENS and STEUER, JJ., who dissent in an opinion by STEUER, J.

STEUER, Justice (Dissenting).

Petitioner is the landlord of a block of apartment buildings housing some 535 tenants. In this proceeding it challenges the denial of its application to respondent City Rent Administrator for leave to discontinue the existing method of supplying electric current to the tenants.

The background of the application lies in the procedures adopted by respondent's predecessor, the State Rent Administrator, to cope with the changes necessitated by the ruling, in 1952, of the Public Service Commission The latter at that time forbade the practice generally followed by landlords of apartment buildings of purchasing electricity from a public utility and of submetering to tenants. Landlords were given the option of having the tenants make their own arrangements with the utility or of dealing with the utility themselves. Under the latter option, adopted by petitioner's predecessors in title, the landlord paid the utility for the current used by the tenants and was allowed a rent increase based on a formula of the average use by tenants in similar apartments.

In effect what the petitioner seeks permission to do is to change the option selected in 1952 and use the other one. Permission was refused on two grounds: first, that this would constitute a diminution in service; second, that having selected the first option which it believed to be more advantageous at the time, it would be unfair to allow a change when the option selected had been found to be less advantageous or has become so later.

As to the first ground, this is not a diminution or discontinuance of an essential service. The landlord does not and never did supply electricity. That was done by the public utility, in this instance the Consolidated Edison Company. What the landlord did do was to supply the electricwiring by which the electricity was made available to the tenants. This is an essential service, and petitioner so recognizes. Concededly, if the petition is granted some rewiring would be required and there might be other expenses, such as meter installation. These the landlord concedes would be its expense, which it states it is willing to pay. As respondent has ample power and facility to see that this condition is complied with, no difficulty on this score affected its determination on the petition.

Coming now to the second objection, this is based in part on the contention...