Parisi v. Hines
Decision Date | 13 March 1986 |
Citation | 501 N.Y.S.2d 242,131 Misc.2d 582 |
Parties | Anthony PARISI, Petitioner, v. Roy HINES, Tenant. |
Court | New York City Court |
Pruzan, Pruzan & Pruzan by Peter J. Pruzan, Brooklyn, for petitioner.
Friedman, Leeds & Shorenstein by Richard L. Farren, New York City, for respondent.
Respondent moves for an order dismissing the petition. The court will treat Petitioner's application for summary judgment as a cross-motion. Motion by Respondent and cross-motion by Petitioner are consolidated for decision as follows:
On September 21, 1983 Petitioner applied to the State of New York Division of Housing and Community Renewal (hereinafter, D.H.C.R.) for a certificate of eviction on the ground that there exists an immediate and compelling need for Petitioner to recover Respondent's apartment for Petitioner's own use.
Petitioner has a 5 year old son who suffers from severe retardation, cortical blindness, frequent seizures and spastic quadraplegia. Petitioner, in his D.H.C.R. application, alleged that he seeks recovery of Respondent's apartment so that full bathroom facilities can be made available on the ground floor where Petitioner's son resides and also to make an additional bedroom to be used by his daughter.
An order granting a certificate of eviction was issued by D.H.C.R. on October 30, 1984. Respondent petitioned for an administrative review of the order on December 6. On June 6, 1985 Petitioner commenced the instant holdover proceeding seeking possession of the premises pursuant to the certificate of eviction. On June 24, Respondent's petition for administrative review was denied.
Respondent in this motion seeks a dismissal of the petition on the ground that he has resided in the premises for over 20 years and is protected from eviction under Section Y 51-6.0(b)(1) of the Administrative Code of the City of New York, as amended by Chapter 234, Laws of 1984.
Chapter 234, Laws of 1984, effective on June 19, 1984, amended the Administrative Code of the City of New York (Section Y 51-6.0(b)(1), the Emergency Housing Rent Control Law (Chapter 274, Laws of 1946, Section 5(2)(a) and the Emergency Tenant Protection Act (Chapter 576, Laws of 1974, Section 4(10)(a), and provides that a landlord no longer can recover possession of a rental accommodation in good faith because of immediate or compelling necessity for his own use or use by his immediate family, where a member of the tenant's household is 62 years of age or older, or has been a tenant in a housing accommodation for 20 years or more, or has a medical impairment....
Respondent argues that the court has the authority to determine the applicability of Chapter 234, L.1984, notwithstanding the certificate of eviction, before a final judgment is entered. Respondent cites 2 cases (Budhu v. Grasso, 125 Misc.2d 284, 479 N.Y.S.2d 303, Vitaliotis v. Mossesso, 495 N.Y.S.2d 111 (N.Y.City Civ.Ct.)) in support of his argument. Both cases were decided by the same judge of coordinate jurisdiction. It appears that the 2 cases were never appealed. This court is not persuaded by the findings in those cases and will not be bound by their rulings.
In this case Respondent took possession of the premises pursuant to a lease agreement dated December 1, 1964. The certificate of eviction issued by D.H.C.R. is dated October 30, 1984. Respondent did not fulfill the statutory requirement of 20 years on the date the certificate was issued but acquired the statutory time thereafter and before the making of the instant motion.
It is axiomatic that a certificate of eviction issued by the Rent Commission may not be collaterally attacked in the Civil Court. (Chatsworth 72nd St. Corp. v. Rigai, 71 Misc.2d 647, 336 N.Y.S.2d 604, aff'd 35 N.Y.2d 984, 365 N.Y.S.2d 531, 324 N.E.2d 888; Keane v. Anastasopoulas, N.Y.L.J., Nov. 16, 1981, p. 7, col. 1, (AT1); Michel v. Hirabayashi, 498 N.Y.S.2d 246 (N.Y.Sup.); Henry Phipps Plaza North, Inc. v. Cavazos, N.Y.L.J., Jan. 31, 1986, p. 12, col. 2 (AT1)). In cases where the tenant can properly prove that the landlord's intentions or the circumstances have so changed that the premises will not be used for the purposes specified in the certificate, or that the certificate was obtained by fraud or illegality and other grounds as set forth in Section 88 of the Rent and Eviction Regulation, the court should stay the trial of the summary proceeding for the tenant to apply for an order revoking the certificate of eviction before the rent commission. (MacLeod v. Shapiro, 20 A.D.2d 424, 247 N.Y.S.2d 423; Spotless Stores, Inc. v. Smith, 279 App.Div. 26, 107 N.Y.S.2d 734). This is not the situation in this case.
This court does not have jurisdiction to review the merits upon which the certificate of eviction was issued or determine the applicability of Chapter 234, L.1984 as to Respondent's present status. (Pierce v. Hankins, 126 Misc.2d 620, 483 N.Y.S.2d 629).
The proper procedure after Respondent has exhausted all administrative remedies is an Article 78 proceeding to challenge the determination of the agency, (See Administrative Code of the City of New York Section Y 51-9.0; Ament v. Cohen, 16 A.D.2d 824, 228 N.Y.S.2d 1001; 746 Realty Corp. v. Barrett, 75 Misc.2d 314, 347 N.Y.S.2d 637; Rental and Management Assoc. Corp. v. Gossin, 61 Misc.2d 305, 305 N.Y.S.2d 270; Pierce v....
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