Giannini v. Stuart

• Decision Date: 21 October 1958
• Citation: 6 A.D.2d 418,178 N.Y.S.2d 709
• Parties: Mary GIANNINI, Landlord-Respondent, v. Cynthia STUART, Tenant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 709

178 N.Y.S.2d 709

6 A.D.2d 418

Mary GIANNINI, Landlord-Respondent, v.Cynthia STUART, Tenant-Appellant.

Supreme Court, Appellate Division, First Department.

Oct. 21, 1958.

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 (seeEmergency Housing Rent Control Law, Chap. 4, McKinney's Unconsolidated Laws, § 8582, L.1946, ch. 274, § 2as 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, however, serve as a substitute for the proof required to...