Slutsky v. Cohen

• Citation: 35 Misc.2d 752,231 N.Y.S.2d 775
• Parties: Ben J. SLUTSKY and Julius Slutsky, Landlords, v. Rose D. COHEN, Tenant, 'John Doe', Undertenant.
• Decision Date: 19 June 1962
• Court: New York City Municipal Court

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.

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 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, 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 (Decrease of services; application, order or report) of the State Rent and Eviction Regulations makes obvious that neither by specific words nor by meaning or intent, can subletting be placed in the same category as elevator service, doorman service, maid and linen service, painting and decorating, etc.--the common garden variety of 'essential services'. The passing reference in the unreported decision of Matter of 208-210 East Seventh Street Corp. (Herman), (N .Y.L.J. 2/21/62 p. 12, c. 8, Sup.Ct.N.Y.Co.) that the right to sublet is an essential service under Sec. 24 is not persuasive because that was a proceeding to review the determination of the State Rent Administrator and predicated upon a consideration of whether his action was arbitrary. The comment was not necessary to the determination and was mere obiter. Moreover, the facts there are far apart from those present in this holdover proceeding.

The character and sense of essential services as called for by the Regulations are more aptly delineated in Konigsberg v. Caputa (First Dept.), 10 A.D.2d 379, 199 N.Y.S.2d 542. There, doorman service, guard service, elevator service and the like, spell out the sense and meaning of 'essential services' under Sections 24 and 35. A tenant's privilage to sublet even predicated upon compulsion imposed upon the landlord and though accompanied by an increase in the maximum rent, can hardly be within the concept and rationale of 'essential services'.

Hence, the Court does not agree with tenant's theory that the privilege of subletting is an 'essential service' and that the landlords are obliged first to apply to the Rent Commission for a revocation of its prior order increasing the maximum rent if subletting should occur,...