Gilbert v. Becker
| Decision Date | 02 June 1955 |
| Citation | 142 N.Y.S.2d 888 |
| Parties | Stanley C. GILBERT and Edward Settel, Landlords-Respondents, v. Rebecca BECKER, Tenant-Appellant. |
| Court | New York Supreme Court — Appellate Term |
George L. Genung, New York City, for appellant.
Harry K. Nadell, Brooklyn, Nathan Bernstein, New York City, of counsel, for respondents.
Before HOFSTADTER, EDER and BRADY, JJ.
Order affirmed, with $10 costs.
EDER, J., dissents and votes to reverse and grant motion to vacate final order.
I vote for reversal and the granting of the motion to vacate the final order.
It is clear from the petition (9) that a mere 30-day notice of landlord's election to terminate the tenancy without any recital of facts was given to the tenant. Although the notice stated that it was being given pursuant to the Rent and Eviction Regulations, McK.Unconsol.Laws, Appendix, the petition states only that it was served upon the tenant and does not state that it was also served upon the Local Rent Office as required by Section 53 of the Regulations.
A defective petition cannot be the basis for a final order and is void even though the tenant may have consented thereto, Gilroy v. Becker, 186 Misc. 93, 59 N.Y.S.2d 328. Where a notice is required to be given before a summary proceeding may be commenced, the petition must allege facts showing proper notice to have been given; the failure to so allege renders the proceeding jurisdictionally defective, Witherbee Sherman & Co. v. Wykes, 159 App.Div. 24, 143 N.Y.S. 1067. In Frankel v. Rost, 272 App.Div. 334, 70 N.Y.S.2d 745, it was held that the failure to give a proper notice as required by the emergency rent laws was jurisdictional and fatal to landlord.
I would agree that, as stated by Justice Nova in Sanfilippo v. Coster, Sup., 91 N.Y.S.2d 738, many instances of repeated and completely unjustified refusals by a tenant to pay rent when due, requiring landlord to institute numerous summary proceedings, may constitute a violation of a substantial obligation of the tenancy. The notice then required by Section 52 of the Regulations would be the 10-day notice to cure the violation. However, I agree that for such past-conduct violation the literal terms of the Regulation may be disregarded, as tenant could not possibly cure that violation in the 10-day period.
But notice to the Local Rent Office of the facts claimed to constitute the violation, as specifically set forth in Section 53 of the Regulations, is still required under these circumstances. The evident purpose of the notice to the Rent Office is to facilitate the supervision and enforcement of the rent laws in the public interest despite ignorance or lack of action on the part of a particular tenant.
The Regulations (Section 15), implementing the express injunction of the emergency rent laws, distinctly state that a tenant's agreement to waive the benefit 'of any provisions of the Act or these Regulations is void.' I agree that, where a stipulation of settlement is openly arrived at after a full investigation of the facts by counsel representing a tenant, and such settlement acted upon, tenant may not thereafter claim his consent to the settlement to be void.
It is my view, however, that the circumstances surrounding the...
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...Bldg. Corp. v. Flickstein, City Civ.Ct., 234 N.Y.S.2d 812; Lansis v. Meklinsky, 10 A.D.2d 649, 198 N.Y.S.2d 247; Gilbert v. Becker, Sup., 142 N.Y.S.2d 888; Sanfilippo v. Coster, Sup., 91 N.Y.S.2d 738, appeal dismissed, App.Div., 100 N.Y.S.2d The question presented is whether the violation i......
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Zalaznick v. Imbembo
...order in favor of the landlord should have been granted. (See 974 Realty Corp. v. Ledford, 9 Misc.2d 240, 171 N.Y.S.2d 908; Gilbert v. Becker, Sup., 142 N.Y.S.2d 888; Stern v. Harrold, 12 Misc.2d 73, 174 N.Y.S.2d 484; Rental Realty Corp. v. Lawrence, 14 Misc.2d 1070, 180 N.Y.S.2d 111; Stern......
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2564 Co. v. D'Addario
...October 1958 to May 1960, or one every three months, a final order in favor of the landlord should have been granted (Gilbert v. Becker, Sup.App.T., 142 N.Y.S.2d 888; 974 Realty Corp. v. Ledford, 9 Misc.2d 240, 171 N.Y.S.2d 908; Rental Realty Corp. v. Lawrence, 14 Misc.2d 1070, 180 N.Y.S.2d......
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Stern v. Harrold
...a violation of a substantial obligation of the tenancy (974 Realty Corp. v. Ledford, 9 Misc.2d 240, 171 N.Y.S.2d 908; Gilbert v. Becker, Sup., 142 N.Y.S.2d 888). Final order reversed, with $30 costs, and final order directed for landlord as prayed for in petition, with All concur. ...