Moss v. Hirshtritt

• Decision Date: 29 May 1969
• Citation: 60 Misc.2d 402,303 N.Y.S.2d 447
• Parties: Rose MOSS, Petitioner-Landlord, v. Leonard HIRSHTRITT, Respondent-Tenant.
• Court: New York City Court

Page 447

303 N.Y.S.2d 447

60 Misc.2d 402

Rose MOSS, Petitioner-Landlord, v. Leonard HIRSHTRITT, Respondent-Tenant.

Civil Court of the City of New York, New York County, Trial Term, Part 25.

May 29, 1969.

Allison & Kaufman, New York City, for landlord-Petitioner.

Peter A. Lewine, New York City, for tenant-respondent.

HILDS G. SCHWARTZ, Judge.

Petitioner-landlord brings this holdover summary proceeding pursuant to Section 52 subdivision (a) of the New York City Rent, Eviction and Rehabilitation Regulations, seeking to evict the tenant because of alleged violations of substantial obligations of his tenancy. The apartment in question is a rent-controlled four-room apartment on the fifth floor of 337 East 88th Street. There is a three-year lease, expiring Sept. 30, 1960, at a rental of $124 per month.

Landlord relies entirely upon Sec. 52(a) of the City Rent Regulations, in his petition. There is no allegation as to nuisance (Subd. b) or illegality of occupancy (Subd. c).

Sec. 52(a) of the City Rent Regulations sets forth as grounds for proceedings for eviction 'a. The tenant is violating a substantial obligation of his tenancy other than the obligation to surrender possession of such housing accommodation and has failed to cure such violation after written notice by the landlord that the violation cease within 10 days; or within the 3 month period immediately prior to the commencement of the proceeding, the tenant has wilfully violated such an obligation inflicting serious and substantial injury upon the landlord.'

The violations of substantial obligations of the tenancy which landlord alleges are (1) violation of Par. 13 of the lease prohibiting occupancy by other than tenant and his immediate family, in that tenant allegedly maintained sub-tenants; (2) violation of Par. 4 which forbids the exposing by tenant of any sign, advertisement or illumination at the windows or in any place except upon approval of landlord, and the use of shades, etc., except such are approved, in that tenant allegedly permitted business signs to be installed and (3) violation of Par. 13 which forbids the use or occupancy for any purpose whatever in violation of governmental rules, ordinances or regulations, in that tenant allegedly maintained a photography studio in the apartment. There is also an allegation that tenant permitted noise and disturbance. While not alleged in the Petition, landlord in a ten-day notice claimed further a violation of Par. 7 which provides that no animals shall be kept without written consent of the landlord.

The tenant denies any violation whatsoever of the obligations of his tenancy or the terms of his lease.

The evidence submitted by landlord was to the effect that in a visit to the apartment some five months previous, her agent found some visitors of tenant, including a bearded young man and several young women. He found an assortment of home-made furniture, including a large table made of boards, partly suspended by a chain from the ceiling; another home-made table made of boards; some photographic supplies in a small room or study which had been equipped with a dark window-shade; tripods and lights. He said he removed a small adhesive strip 1/2 4 from the mailbox with the legend 'Hirsch Enterprises;' that he removed the tenant's nameplate from the mailbox, on which another name besides the tenant had once appeared and since was blotted out; and a larger adhesive sign containing an obvious humorous reference, from the apartment door. Landlord also produced a business card with tenant's name on it, his home address and telephone number and the word 'Photography.' He stated that on one occasion he saw three people enter tenant's apartment, using keys to the front door and the apartment door. The superintendent testified that there was lots of company and that he heard noise and that sometimes a guest of the tenant would stay overnight; that the apartment was untidy; that a guest had visited with a dog but had left five months ago.

The tenant and three witnesses in his behalf, two of them attorneys and one a finance analyst and college photography editor, testifed that the tenant was a free-lance film editor who worked at his employers' premises; that he conducted no business whatsoever in or from his apartment; that his hobby was photography and that there was no professional darkroom in the apartment, merely amateur equipment; that his home telephone was on his card so that he could be reached outside of his working hours. Tenant's witnesses denied that a dog ever was kept in the apartment. Tenant denied that keys had been given to anyone except someone who cleaned the apartment; that he does not and never did maintain a photography studio in his apartment but has an enlarger, some trays, some chemicals and lenses for use in his hobby of photography, one amateur tripod and three small cameras. He stated that he had placed the humorous sign and the small adhesive strip on his apartment door as a prank or joke to amuse his friends. He testified that he had built his sofa and two tables from...