Kaplan v. Uribe
| Decision Date | 21 June 1955 |
| Citation | 142 N.Y.S.2d 41,286 A.D. 156 |
| Parties | Isaac KAPLAN, d/b/a Insjar Realty Co., Landlord-Appellant-Respondent, v. Andres URIBE, Tenant-Respondent-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Benjamin Hurwitz, New York City, of counsel (Maurice B. & Daniel W. Blumenthal, New York City, Attorneys), for landlord-appellant-respondent.
Albert D. Jordan, New York City, of counsel (Ehrich, Stock, Leighton & Holland, New York City, Attorneys), for tenant-respondent-appellant.
Before PECK, P. J., and COHN, BREITEL and RABIN, JJ.
Landlord instituted summary proceedings in August, 1953, to recover possession of an apartment occupied by tenant for nonpayment of monthly rentals of $300 for the months of June, July and August 1953. The tenant interposed a counterclaim on August 17, 1953 in which he alleged that the maximum rent recoverable under the provisions of the Emergency Housing Rent Control Law, L.1946, ch. 274, as amended, McK.Unconsol.Laws, § 8581 et seq., was $201.25 per month, or a monthly overcharge of $98.75; that a prior summary proceeding had been instituted by landlord against the tenant for nonpayment of the June 1953 rent in the sum of $300; that the tenant had interposed a counterclaim therein similar to the counterclaim alleged in this action for treble the claimed rental overcharges for a period of twelve months and counsel fees; that the prior proceeding was dismissed for lack of jurisdiction and the tenant's counterclaim 'discontinued without prejudice to its renewal and reinstatement in any proper proceeding and action.'
Tenant in his counterclaim in the present proceeding was awarded judgment for treble damages for the twelve-month period from June 1, 1952 to May 31, 1953, together with a counsel fee.
This appeal presents a question whether Section 23 of the Civil Practice Act can be invoked to extend the time beyond the one year fixed by Section 11(5) of the Emergency Housing Rent Control Law, within which the tenant may commence an action, after dismissal of the counterclaim in a prior summary proceeding.
Section 11(5) of the Rent Control Law provides that a tenant may commence a rental overcharge action 'within one year from the date of the occurrence of the violation.' The right to recover alleged excess payments under the Rent Control Law is a special statutory right unknown to the common law. The limitations of time prescribed by the Legislature to commence an action unknown to the common law is a condition precedent to the maintenance of such an action. The Statute creates a new legal liability, with the right to a suit for its enforcement, provided the suit is brought within twelve months, and not otherwise. As pointed out by Mr. Justice Hammer in his dissenting opinion in Lebrecht v. Orefice, 199 Misc. 1025, 1029, 105 N.Y.S.2d 318, 322, if a tenant is to avail himself of the fruits provided by such an action by way of treble damages, he must take the right afforded him subject to the time limitation which the Legislature has fixed by clear language....
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Lee v. Port Authority of New York & New Jersey, 79 Civ. 4050(GLG).
...256 N.Y.S.2d 495 (2d Dep't 1965). Conditions precedent were distinguished from statutes of limitation in Kaplan v. Uribe, 286 A.D. 156, 158, 142 N.Y.S.2d 41, 42 (1st Dep't 1955): The liability and the remedy are created by and within the same statute, and the limitations of the remedy are, ......
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Balzano v. Port of New York Authority
...provision does not constitute a statute of limitations but merely establishes a condition precedent. As was said in Kaplan v. Uribe (286 App.Div. 156, 142 N.Y.S.2d 41): 'The liability and the remedy are created by and within the same statute, and the limitations of the remedy are, therefore......
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Balzano v. Port of New York Authority
...v. Scandinavian American Line, 186 App.Div. 89, 174 N.Y.S. 147, affd. on opinion below, 226 N.Y. 696, 123 N.E. 888; Kaplan v. Uribe, 286 App.Div. 156, 142 N.Y.S.2d 41; Matter of Keep, 241 App.Div. 556, 272 N.Y.S. 713, affd. sub. nom. Matter of Keep v. City of Lockport, 266 N.Y. 583, 195 N.E......
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Afsco Specialties, Inc. v. Maryland Cas. Co.
...for enforcement 'the limitations of the remedy are, therefore, to be treated as limitations of the right' (see Kaplan v. Uribe, 286 App.Div. 156, 142 N.Y.S.2d 41)--and also, apparently, because the consent of the State of New Jersey in joining in the act was specifically based upon the time......