MATTER OF DANFORTH v. McGoldrick

• Decision Date: 11 December 1951
• Citation: 201 Misc. 480
• Parties: In the Matter of Leonie A. Danforth, Petitioner,<BR>v.<BR>Joseph D. McGoldrick, as State Rent Administrator, Respondent.
• Court: New York Supreme Court

201 Misc. 480

In the Matter of Leonie A. Danforth, Petitioner,

v.Joseph D. McGoldrick, as State Rent Administrator, Respondent.

December 11, 1951.

Baldwin, Todd & Lefferts for petitioner.

Robert H. Schaffer and Beatrice Shainswit for respondent.

CORCORAN, J.

The petitioner brings this proceeding under article 78 of the Civil Practice Act to review an opinion of the State Rent Administrator and an amendment to the Rent and Eviction Regulations of the Temporary State Housing Rent Commission, and to annul the issuance of a certificate of eviction by the commission.

The petitioner is the tenant and occupant of an apartment in what is now a co-operative apartment house. When the petitioner and her husband first became tenants in 1943, the house was not co-operatively owned. Their lease expired on September 30, 1946, and they continued to occupy the apartment as statutory tenants. The petitioner's husband died in 1950, but she has continued in possession of the apartment.

In 1947, the building became a co-operative apartment house. The co-operative corporation offered to sell to the petitioner's husband certain of its capital stock allocated to the apartment which they occupied, and to give him a proprietory lease on it. When this offer was declined, the corporation sold the stock and the proprietory lease for that apartment to one Wanger.

In May, 1951, Wanger applied to the Temporary State Housing Rent Commission for a certificate of eviction, on the ground that possession was desired for personal occupancy by him and his immediate family. The local rent administrator issued an order granting the certificate. The petitioner filed a protest, asserting as her principal objection the fact that the administrator had not found that there was any immediate or compelling necessity for Wanger or his family to have the use and occupancy of the apartment, and that Wanger had not even made an attempt to prove such necessity. The State Rent Administrator has affirmed the issuance of the certificate of eviction.

Under the State Residential Rent Law, a landlord who seeks to recover possession for the use and occupancy of himself or his immediate family must prove "immediate and compelling necessity" as a condition to obtaining a certificate of eviction, except that no such proof is required where the housing accommodations are located in a "one-or two-family house" (L. 1946, ch. 274, § 5, subd. 2, par. [a], as amd. by L. 1951, ch. 443).

Paragraph 3 of section 55 of the Rent and Eviction Regulations of the Temporary State Housing Rent Commission relates to the recovery of possession in the case of co-operatives. Until September 1, 1951, it had stated that an application for an eviction certificate must comply with subdivision 1 of that regulation. Though this subdivision repeated the provisions of the statute with respect to "immediate and compelling necessity", the State Rent Administrator has always interpreted the regulation to mean that the landlord of a co-operative apartment has the same rights under it as the owner of a one-family house and was not required to prove "immediate and compelling necessity" (Administrator's Opinion No. 79).

On September 1, 1951, paragraph 3 of section 55, of the regulations was amended by providing that where the applicant for a certificate of eviction "seeks to recover possession for his own personal use, he need not establish an immediate and compelling necessity" (Amendment No. 6, eff. Sept. 1, 1951). Thus the opinion of the State Rent Administrator was, in effect, incorporated into the regulations. The State Rent Administrator has continuously taken the position that his Opinion No. 79 was what the regulations meant even without Amendment No. 6.

In my opinion, the State Rent Administrator's Opinion No. 79, and the commission's Amendment No. 6 to paragraph 3 of section 55 of the Rent and Eviction Regulations are contrary to law. A co-operative apartment is not a one-family house or a two-family house. The fact that some State and Federal statutes treat the ownership of a co-operative apartment the same as the ownership of a one-family house does not make them identical. A person purchasing stock in a co-operative is not buying a house. He is buying shares in a corporation and contractual rights to occupancy of an apartment in a building owned by the corporation. It is true that the object of co-operatives "so far as practicable, is to constitute the persons to whom space in the building has been assigned as the owners of such space" (Smith v. Feigin, 273 App. Div. 277, 280, affd. 298 N.Y. 534), and that the stockholders in a co-operative, in effect, have title to each respective apartment. It is not true, however, that the space or apartment to which title is held by a co-operative shareholder becomes a house rather than an apartment because of the peculiar nature of this type of ownership. There are many similarities between the ownership of a house and that of stock in a co-operative apartment, but the differences between the two types of housing accommodations are essential and obvious. That these differences are economic as well as physical and legal is emphasized by the facts in this proceeding where it appears that the "landlord" purchased stock not for one, but for three co-operative apartments. In the absence of statutory authorization so to do, the commission has no power to treat co-operative apartments and one-family houses as identical in all respects.

The Legislature has the power, of course, to include co-operatives within the definition of one- and two-family houses for the purpose here involved, or for all purposes, and to attach the same rights and obligations to the ownership of such housing accommodation. I find nothing in the language of chapter 443 of the Laws of 1951, or in its legislative history, however, which indicates an intention on the part of the Legislature to give such a broad meaning to the words "one- or two-family houses".

In the early part of the 1951 legislative session, the State Rent Administrator, in accordance with statutory direction (State Residential Rent Law, § 4, subd. 2, par. [c], as amd. by L. 1950, ch....