Luxenberg v. Stichman

• Decision Date: 18 December 1956
• Citation: 157 N.Y.S.2d 395,2 A.D.2d 605
• Parties: Application of Jesse LUXENBERG, Petitioner-Respondent, for an order pursuant to Article 78 of the Civil Practice Act, v. Herman T. STICHMAN, Commissioner of Housing of the State of New York, and Joseph P. McMurray, his successor, Respondents-Appellants, and Amalgamated Housing Corporation, Intervenor-Landlord-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 395

157 N.Y.S.2d 395

2 A.D.2d 605

Application of Jesse LUXENBERG, Petitioner-Respondent, for an order pursuant to Article 78 of the Civil Practice Act, v. Herman T. STICHMAN, Commissioner of Housing of the State of New York, and Joseph P. McMurray, his successor Respondents-Appellants, and Amalgamated Housing Corporation Intervenor-Landlord-Respondent.

Supreme Court, Appellate Division, First Department.

Dec. 18, 1956.

Daniel M. Cohen, New York City, of counsel (James O. Moore, Jr., Albany, and Philip Watson, New York City, with him on the brief; Jacob K. Javits, Atty. Gen.), for appellants.

Jesse Luxenberg, New York City, for petitioner-respondent.

Before PECK, P. J., and BREITEL, COX, FRANK and VALENTE, JJ.

PER CURIAM.

This is an appeal from an order annulling a determination of the State Commissioner of Housing who granted leave, by the issuance of a certificate, to the landlord, owner of a co-operative housing development, to commence an eviction proceeding against a rental tenant.

Petitioner is a month-to-month tenant without benefit of lease, ownership of stock or beneficial interest therein, in a limited dividend housing project. The certificate was sought by the landlord for the purpose of evicting the present occupant and delivering possession of his apartment to a subscriber, who has paid a twenty-five per cent deposit on the requisite number of shares of stock of the corporate owner. It may be noted parenthetically that before the landlord made the application to the Commissioner for permission to commence a summary proceeding, petitioner was offered the opportunity on many occasions commencing in 1945 to purchase the stock required for the continued occupancy of his apartment, but he consistently declined to avail himself of the offer.

Concededly, the landlord is a limited dividend housing company organized and existing under the Public Housing Law. Occupants of apartments in such projects are not protected by the State Emergency Housing Rent Control Law, L.1946, ch. 274, § 2, subd. 2, par. (e) as amended. Unconsol.Laws, § 8582, subd. 2(e). There are no provisions in the Public Housing Law prohibiting or restricting the eviction of tenants except in cases where the family income is greater than the permissible maximum, Public Housing Law, Sec. 182, subd. 3(a)(4). We will not disturb the factual finding made by the Commissioner upon adequate proof that the income of the subscriber to the stock does not exceed the limitation set for occupancy of the subject apartment.

Pursuant to the authority granted the Commissioner, Public Housing Law, §§ 14, 19, he promulgated regulations restricting the eviction of tenants by housing companies operating under the statute. The landlord under such regulations, before commencement of eviction proceedings, was required to obtain a certificate from the Commissioner 'that he has no objection to the commencement of such eviction proceeding.' Regulation 7A of the Division of Housing, as amended Nov. 2, 1951, Seventh Official Supplement to the Official Compilation of the Codes, Rules and Regulations of the State of New York, pp. 208-209.

The regulation...