Slutsky v. Cohen

CourtNew York City Municipal Court
Writing for the CourtMAXWELL SHAPIRO
Citation35 Misc.2d 752,231 N.Y.S.2d 775
Decision Date19 June 1962
PartiesBen J. SLUTSKY and Julius Slutsky, Landlords, v. Rose D. COHEN, Tenant, 'John Doe', Undertenant.

Page 775

231 N.Y.S.2d 775
35 Misc.2d 752
Ben J. SLUTSKY and Julius Slutsky, Landlords,
v.
Rose D. COHEN, Tenant, 'John Doe', Undertenant.
Municipal Court of City of New York, Borough of Manhattan,
Fifth District.
June 19, 1962.

Page 776

[35 Misc.2d 753] Mortimer G. Levine, New York City, for landlords.

Elliott J. Sachs, New York City, for tenant and Carolyn Bush, Rudolph de Winter, New York City, of counsel.

MAXWELL SHAPIRO, Justice.

By this holdover proceeding landlords seek to oust this residential statutory tenant on the ground that by a new weekly subletting to a stranger, there has been a violation of the expired lease clause against subletting without the consent of the landlords . Contrary to the express written prohibition of the landlords that tenant was not to sublet, tenant nevertheless proceeded to do so by advertising in the New York Times.

Tenant took possession of the apartment under a lease which expired on February 28, 1954. Tenant claims that following her husband's death in 1952 she shared her apartment with various persons who paid her rent therefor. On September 24, 1956, the Rent Commission upon the application of landlord's predecessor, issued its order increasing the maximum rent during periods of subletting from $97.52 per month to $107.27 per month.

Present landlords took title in April, 1958. Tenant paid and landlords accepted the higher rent based upon tenant's subletting until October, 1961. By letter dated October 2, 1961 tenant notified landlords that she was not subletting and paid the lower rent which landlords accepted. Tenant further indicated her intention to sublet again. On October 18, 1961 landlords wrote tenant that since she had ceased to rent space in her apartment the landlords elected to prohibit any further renting, increased occupancy or subletting.

Nevertheless, on November, 1, 1961 tenant notified the landlords in writing that she had obtained a new sub-tenant and tendered the increased

Page 777

maximum rent under the subletting order of the Rent Commission. The landlords refused the tender of rent and countered with a demand that the subletting terminate at the peril of the institution of these holdover proceedings.

Instead of complying, the tenant made successive subletting arrangements with different people. Tenant is presently subletting and sharing her apartment, and receiving a weekly rent of $18.65.

The pertinent provisions of the lease are as follows:

'3. Tenant * * * shall not * * * underlet, or use or permit the demised premises or any part thereof to be used by others, without the prior written consent of Landlord in each instance. If * * * the demised premises or any part thereof be underlet or occupied by anybody other than Tenant, [35 Misc.2d 754] Landlord may, after default by Tenant, collect rent from the assignee, under-tenant or occupant, and apply the net amount collected to the rent herein reserved, but no such assignment, underletting, occupancy or collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, under-tenant or occupant as tenant, or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant herein contained. The consent by Landlord to an assignment or under-letting shall not in any wise be construed to relieve Tenant from obtaining the express consent in writing of Landlord to any further assignment or under-letting.'

At the outset, tenant defends by asserting that the application of landlords' predecessor to the Rent Commission for an increase in the maximum rent because of subletting having been granted, such subletting has become an 'essential service', not to be discontinued without a specific order of permission by the Rent Commission. Concededly, no application has been made by the landlords to the Rent Commission to revoke its prior order.

The language of Sections 24, McK.Unconsol.Laws, Appendix (Services included in the maximum rent) and 35...

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1 practice notes
  • Dunbar Apartments Co. v. Gabel
    • United States
    • New York Supreme Court Appellate Division
    • February 4, 1965
    ...statute (Bisbano v. 42-20 Restaurant Corp., 280 App.Div. 790, 113 N.Y.S.2d 215). As this is not an essential service (Slutsky v. Cohen, 35 Misc.2d 752, 231 N.Y.S.2d 775) the other factors which the Administrator urges are of no Even if the Administrator enjoyed such powers as the nature of ......
1 cases
  • Dunbar Apartments Co. v. Gabel
    • United States
    • New York Supreme Court Appellate Division
    • February 4, 1965
    ...statute (Bisbano v. 42-20 Restaurant Corp., 280 App.Div. 790, 113 N.Y.S.2d 215). As this is not an essential service (Slutsky v. Cohen, 35 Misc.2d 752, 231 N.Y.S.2d 775) the other factors which the Administrator urges are of no Even if the Administrator enjoyed such powers as the nature of ......

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