Giannini v. Stuart

Decision Date21 October 1958
Citation6 A.D.2d 418,178 N.Y.S.2d 709
PartiesMary GIANNINI, Landlord-Respondent, v. Cynthia STUART, Tenant-Appellant.
CourtNew York Supreme Court — Appellate Division

Robert H. Silk, New York City, of counsel (Edward Raff, New York City, attorney), for appellant.

Milton Gelman, New York City, of counsel (I. William Garfield, New York City, attorney), for respondent.

Before BOTEIN, P. J., and BREITEL, FRANK, VALENTE and STEVENS, JJ.

PER CURIAM.

In this holdover proceeding, the Appellate Term affirmed a final order in favor of the landlord.

Two prime questions are posed. The first is whether the petition is jurisdictionally defective; the second, whether a 'Landlord's Report on Statutory Decontrol' filed with the Rent Commission is sufficient to establish that the premises are in fact decontrolled. These will be considered in inverse order.

The landlord's claim that the premises are decontrolled rests upon her assertion that she occupied the apartment continuously for a period of two years after April 1, 1953 (see Emergency Housing Rent Control Law, Chap. 4, McKinney's Unconsolidated Laws, § 8582, L.1946, ch. 274, § 2 as amended; State Rent and Eviction Regulations, Section 9, Subdivision 11, McK.Unconsol.Laws Appendix.

The only proof offered and received in evidence on the trial, to establish that the landlord had in fact occupied the premises, was an unverified form entitled, 'Landlord's Report on Statutory Decontrol', stamped to indicate that it had been filed in the office of the Local Rent Administrator. The sole witness for the landlord, her agent, testified that the owner's principal residence was in Brooklyn and that part of the time she resided in Otisville, New York. There was no testimony that the landlord actually occupied the apartment and an attempt to offer hearsay on the subject was properly rejected by the trial court. The report is signed by the landlord's agent, who, as indicated herein, had no personal knowledge of the facts. Although it was filed in the office of the Local Rent Administrator pursuant to the State Rent and Eviction Regulations (§ 42), the report cannot, under any circumstances, be construed to be an order or a certificate issued by the Rent Commission entitled to be considered self-proving as authorized by the Civil Practice Act. Actually, it is nothing more than a self-serving declaration. The trial court in admitting the document stated, 'I am taking it at its full face value.' We must conclude that the final order in favor of the landlord was granted upon a finding that this exhibit, without more, established the fact of decontrol.

Since Section 42 directs the filing of the report, it was properly received in evidence as proof of compliance with the regulations, although it is not essential to prove the owner's right to possession. It cannot,...

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59 cases
  • E. 168th St. Assocs. v. Castillo
    • United States
    • New York Civil Court
    • May 23, 2018
    ...by states and their designated housing finance or other agencies." (Chapter 1, Section 1–2 of the HUD Handbook.)In Giannini v. Stuart , 6 A.D.2d 418, 178 N.Y.S.2d 709 (1958), the court found a Petition to be deficient which pled the bare allegation that a premises was decontrolled. The cour......
  • Town of Oyster Bay Hous. Auth. v. Kohler
    • United States
    • New York District Court
    • March 21, 2012
    ...therewith (Villas of Forest Hills Company v. Lois Lumberger, 128 A.D.2d 701, 513 N.Y.S.2d 116 [2d Dept 1987]; Giannini v. Stuart, 6 A.D.2d 418, 178 N.Y.S.2d 709 [1st Dept 1958]; see alsoRPAPL # 741[1] [the petition must “[s]tate the respondent's interest in the premises and his relationship......
  • Fitzgerald v. Washington
    • United States
    • New York City Court
    • February 13, 1975
    ...Tenant Protection Act of 1974, ch. 576, § 4; 353 Realty Corp. v. Disla, 81 Misc.2d 68, 364 N.Y.S.2d 676; see generally, Giannini v. Stuart, 6 A.D.2d 418, 178 N.Y.S.2d 709. (2) Sufficiency of Pleading--Demand for The printed petition herein states: '6. That said rent has been duly Demanded p......
  • Birchwood Towers No. 2 Associates v. Schwartz
    • United States
    • New York Supreme Court — Appellate Division
    • December 5, 1983
    ...Fisch v. Chason, 99 Misc.2d 1089, 418 N.Y.S.2d 495; Sapphire Hotel Corp. v. Netzick, 82 Misc.2d 95, 368 N.Y.S.2d 113; Giannini v. Stuart, 6 A.D.2d 418, 178 N.Y.S.2d 709 and Stier v. President Hotel, 28 A.D.2d 795, 281 N.Y.S.2d 140). "These cases exemplify an improper use of the term jurisdi......
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9 books & journal articles
  • Confusing, prejudicial, & cumulative
    • United States
    • James Publishing Practical Law Books New York Objections
    • May 3, 2022
    ...statements offered for the truth of the matter asserted. People v. Nieves , 67 N.Y.2d 125, 501 N.Y.S.2d 1 (1986); Giannini v. Stuart , 6 A.D.2d 418, 178 N.Y.S.2d 709 (1st Dept. 1958). However, even if the documents or statements are not precluded by the hearsay rule, the court still has the......
  • Confusing, prejudicial, & cumulative
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2020 Contents
    • August 2, 2020
    ...statements ofered for the truth of the matter asserted. People v. Nieves , 67 N.Y.2d 125, 501 N.Y.S.2d 1 (1986); Giannini v. Stuart , 6 A.D.2d 418, 178 N.Y.S.2d 709 (1st Dept. 1958). However, even if the documents or statements are not precluded by the hearsay rule, the court still has the ......
  • Table of cases
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2014 Contents
    • August 2, 2014
    ...A.D.3d 126, 815 N.Y.S.2d 526 (1st Dept. 2006), rev’d on other grounds , 8 N.Y.3d 859, 832 N.Y.S.2d 476 (2007), § 5:150 Giannini v. Stuart, 6 A.D.2d 418, 178 N.Y.S.2d 709 (1st Dept. 1958), § 6:40 Gibbs v. 3220 Netherland Owners Corp ., 99 A.D.3d 621, 953 N.Y.S.2d 34 (1st Dept. 2012), § 16:11......
  • Confusing, prejudicial, & cumulative
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2021 Contents
    • August 2, 2021
    ...statements ofered for the truth of the matter asserted. People v. Nieves , 67 N.Y.2d 125, 501 N.Y.S.2d 1 (1986); Giannini v. Stuart , 6 A.D.2d 418, 178 N.Y.S.2d 709 (1st Dept. 1958). However, even if the documents or statements are not precluded by the hearsay rule, the court still has the ......
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