Hotel Esplanade, Inc. v. Herman

• Decision Date: 21 April 1960
• Citation: 200 N.Y.S.2d 157,24 Misc.2d 1086
• Parties: Application of HOTEL ESPLANADE, INC., Petitioner, for an order under Article 78 of the Civil Practice Act, v. Robert E. HERMAN, Commissioner and State Rent Administrator, Respondent.
• Court: New York Supreme Court

Page 157

200 N.Y.S.2d 157

24 Misc.2d 1086

Application of HOTEL ESPLANADE, INC., Petitioner, for an

order under Article 78 of the Civil Practice Act, v. Robert E. HERMAN, Commissioner and State Rent Administrator,

Respondent.

Supreme Court, Special Term, New York County, Part I.

April 21, 1960.

Freedman & Lilienthal, New York City (Elliot B. Zafrin, New York City, of counsel), for petitioner.

Harold Zucker, New York City (Robert Sugerman, New York City, of counsel), for respondent.

MATTHEW M. LEVY, Justice.

An intermediate order entered in a proceeding instituted in pursuance of Article 78 of the Civil Practice Act is not appealable without leave of the court which made the order (Civil Practice Act, § 1304; Sunland Beverage Corp. v. Rohan, 6 A.D.2d 996, 177 N.Y.S.2d 732; 22 Carmody-Wait, Cyclopedia of New York Practice, pp. 556-557).

In the instant matter, a determination was made by the State Rent Administrator denying the petitioner's applications for a rent increase. At no time was there a hearing thereon on the merits before the Rent Commission. Upon the Article 78 proceeding brought by the petitioner to review the determination of the Administrator, I remanded the matter to the respondent for further consideration and action not inconsistent with my opinion (197 N.Y.S.2d 579). Such an order is an intermediate one and is not appealable without leave of court (Benoit v. Weaver, 3 A.D.2d 1008, 165 N.Y.S.2d 443).

The respondent now moves for such leave. The moving papers fail to disclose sufficient grounds for the relief requested. There is no claim that the decision is contrary to any appellate precedent or that the courts at nisi prius are in disagreement. The fact that there may be other matters pending before the respondent which may be affected if the respondent follows the present ruling in those matters is not enough to warrant an appeal now. In my opinion, a review of this matter by the Appellate Division should take its regular course and would, under the circumstances, be more appropriate in the event an increase of rent is granted or denied, after a full hearing on the merits of the petitioner's applications by the Commission, and a final disposition in this court of the Article 78 proceeding, if any, brought to review that determination.

Accordingly, the motion by the respondent for leave to appeal from the order is denied.