Park-58 Corp. v. Reder

• Decision Date: 28 January 1960
• Docket Number: PARK-58
• Citation: 21 Misc.2d 395,196 N.Y.S.2d 39
• Parties: CORPORATION, Landlord, v. Dr. Milton REDER, Tenant, Dr. Otto Reiniger, Dr. Alfred Kastenbaum, Undertenants.
• Court: New York City Municipal Court

Page 39

196 N.Y.S.2d 39

21 Misc.2d 395

PARK-58 CORPORATION, Landlord, v. Dr. Milton REDER, Tenant, Dr. Otto Reiniger, Dr. Alfred Kastenbaum, Undertenants.

Municipal Court of City of New York, Borough of Manhattan Ninth District.

Jan. 28, 1960.

Kiralfy, Koch & Greenberg, New York City, by Theodore Greenberg, New York City, of counsel, for landlord.

David Neuwirth, New York City, for tenant and undertenants.

MAXWELL SHAPIRO, Justice.

This holdover proceeding against the physician-tenant is grounded upon the recent ruling that a doctor's office, maintained at street level, in an apartment house, is a store under Section 8(gg)(1) of the Emergency Business Space Rent Control Law as the same was enacted on April 17, 1956. ¹ Sterling v. Lapidus, 17 Misc.2d 587, 183 N.Y.S.2d 98, 99, affirmed without opinion App.T. 1st Dept., (N.Y.L.J. June 5, 1959), leave to appeal to the Appellate Division granted (9 A.D.2d 642, 191 N.Y.S.2d 548).

This ruling at once is at odds with our every day experience. For decades thousands of doctors in New York City have had their offices on street level floors of apartment buildings. Was it the intent of the Legislature to consider these offices, with their treatment rooms and patient waiting rooms, as stores? Was it intended that doctor's offices at street level were to be decontrolled, while those above street level were not to be? Why did the Legislature, having provided a separate definition for 'office' space, limit Section 8(gg)(1) to 'store' space? If the Legislature intended to include offices at street level, could it not have easily done so by simply stating that (gg)(1) shall apply to all business space ² at street level?

These are but a few of the challenging questions generated by the Lapidus holding. Nowhere in this statute has the Legislature directed that a doctor's office on street level ipso facto becomes a store. The rule of the Lapidus case is at variance with what we plainly see in our daily life--is it not likely also to be at variance with the intent of the Legislature when it enacted Section 8(gg)(1)? Unless otherwise compelled to do so, this Court cannot blindly accept a ruling so inconsistent with reality.

In general, this Court is duty bound to follow the decisions of higher courts. But, stare decisis is a principle of guidance, not 'a contrivance to hamper the judge in administering justice * * *.' (Von Moschizisker--Stare Decisis in Courts of Last Resort, 37 Harv.L.Rev. 409, 410). Its force is not mechanical or automatic; to the contrary, it is a 'moral obligation only'--where the law has been misunderstood or misapplied, or contrary to reason, 'stare decisis' does not inhibit correction. People ex rel. Rice v. Graves, 242 App.Div. 128, 135, 273 N.Y.S. 582, 590, affirmed 270 N.Y. 498, 200 N.E. 288, certiorari denied 298 U.S. 683, 56 S.Ct. 953, 80 L.Ed. 1403. Particularly, in construing novel legislation, analysis and reason are the guides; demonstrable error is not to be perpetuated by strict adherence to an earlier decision. Cameron v. Ellis Const. Co., 252 N.Y. 394, 399, 169 N.E. 622, 624. Litigants can still challenge the correctness of a prior decision between other parties even though the prior determination would indicate a similar conclusion. Sears, Roebuck & Co. v. 9 Avenue--31 Street Corporation, 274 N.Y. 388, 400, 9 N.E.2d 20, 26. Moreover, affirmance here by the Appellate Term without opinion meant only a concurrence in result without necessarily adopting the reasoning below. Scott & Co. Inc. v. Scott, 186 App.Div. 518, 525, 174 N.Y.S. 583, 587. Thus, even apart from the conclusive significance of pending review by the Appellate Division (Montrose v. Baggott, 161 App.Div. 494, 501, 146 N.Y.S. 649, 654), this Court not only can but should render decision as it finds the law to be. Section 8(gg)(1) by express language is confined to stores. Certainly a store is within every one's knowledge--it would indeed be difficult to find a layman who could not point out a store and detail its characteristics accurately and without hesitation. To an ordinary person a doctor's office is not a store, whether the office is at street level or elsewhere. The basic character of a store is a place where people shop--the kind of place where the general public is invited to buy goods or services. For purposes of the Emergency Business and Commercial Rent Statutes, the Legislature has grafted on the requirement that such place be at street floor or level. But by so doing, it does not follow that the Legislature made all business space at street level store space.

It is difficult to conceive of a doctor's office, such as appears in Landlord's Exhibit 5, as a place where people shop for medical treatment. Upon the trial, the evidence showed that Dr. Reder's office is at 470 Park Avenue (southwest corner of 58th Street and Park Avenue) in a fourteen story apartment house building, containing 57 apartments. Its windows and single door entrance are curtained with venetian blinds. Except for the three small bronze doctor's name plaques at the side of the entrance door, the exterior appearance of the subject premises is that of another apartment in the building. Certainly, these plaques, bearing but the names of the doctors, and no more, could hardly be an invitation to the public to enter and shop for medical services. Their purpose is no different from the usual name plate at the entrance door of an apartment.

Solely on the authority of Lapidus, Landlord demands that this Court find these premises, though possessed of the foregoing characteristics, to be a store under Section 8(gg)(1). This Court does not find within the statute that compulsion which led to the Lapidus ruling; nor does it accept the reasoning there expressed.

The Legislature set out separate definitions for a 'store' and for an 'office'. A store is:

'Any space predominantly used or occupied by a tenant for the sale of personal property or the rendition of services in the ordinary course of business, provided that such rental space shall also include space for the conduct of such business on the street floor or level.' (Italics supplied; McKinney's Unconsol.Laws, § 8522(c)).

An office is:

'Any space used or occupied under a lease or rental agreement as a separate business unit in any building which space is predominantly used or occupied for other than commercial purposes.' (Italics supplied; McKinney's Unconsol.Laws, § 8522(d))

Striking differences in these definitions come to the fore and their rationale becomes apparent.

1. A store is limited in location.

A store must include space on the street floor level, while

An office is any space in any building whether on street level or elsewhere.

2. A store is limited in function.

It is space 'predominantly used * * * for the sale of personal property or the rendition of services in the ordinary course of business', while

An office is predominantly used or occupied for other than commercial purposes.

The Legislature, in defining 'office' vis-a-vis 'store', set out a broad concept of office space--i. e., space where everything can be done anywhere in a building other than 'the manufacture, sale, resale, processing, re processing, displaying, storing, handling, garaging, or distribution of personal property'. (Definition of Commercial Purposes, McKinney's Unconsol.Laws, § 8522(b)) The Legislature saw fit to limit this broad scope in only one vital respect. An office cannot be space devoted to the sale of personal property, while a store is 'predominantly' so devoted. Linking together in specific definition of 'store' the sale of property and the rendition of services in the ordinary course of business, points up the sense in which the Legislature used the latter phrase. To be 'store' space such services must be rendered, in the 'ordinary course of business' at street or floor level. To be 'office' space, the services can be of any kind other than those coming within the definition of commercial purposes, and they may be rendered anywhere in the building including on street or floor level.

Certainly, personal property can be sold and services in the ordinary course of business rendered in building space other than on street floor or level. Yet, even though so rendered, such space has been held not to be 'store' space. Margana Realty Corp. v. Ellis, App.T. 1st, 8 Misc.2d 894, 160 N.Y.S.2d 662; 6 East 53rd St. Corp. v. Olin, 201 Misc. 218, 108 N.Y.S.2d 943.

By limiting so carefully 'store' space to street floor or level, the Legislature obviously was covering that type of business activity which solicits and invites the general public traveling and walking in front of the premises to come in and shop. In my view, this is the center point of the definition of 'store'--and the reason for the limitation by the Legislature of Section 8(gg)(1) to stores.

Barbering, shoemaking and other like services are commonly rendered in the ordinary course of business in stores. The public normally and in everyday life shop for services of this type in stores. Services for which people usually shop fall naturally and without perplexity and confusion, within the statutory definition of 'store'--and are compatible with the first part of the definition--the sale of personal property.

Although the rationale in Lapidus is that professional medical services are rendered in the ordinary course of business, this Court does not view that this is the turning point of decision. If the Legislature intended that Section 8(gg)(1) should cover offices as well as stores that are on street level, it could have so provided simply by stating that the section shall apply to all business space at street level, for business space is conceived to be either store space or office space. (Report of State Commission to Study Rents and Rentals, 1956 McKinney's Session Laws, page 1401). In construing statutes, the court must not depart from everyday common experience and...