Sterling v. Lapidus

• Decision Date: 22 March 1960
• Citation: 199 N.Y.S.2d 216,10 A.D.2d 180
• Parties: Robert D. STERLING, Landlord-Respondent, v. Paul LAPIDUS, Tenant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 216

199 N.Y.S.2d 216

10 A.D.2d 180

Robert D. STERLING, Landlord-Respondent, v. Paul LAPIDUS, Tenant-Appellant.

Supreme Court, Appellate Division, First Department.

March 22, 1960.

Louis Okin, New York City, of counsel (Sohn & Okin, New York City, attys.) for tenant-appellant.

George Brussel, Jr., New York City, of counsel (Edward Labaton, New York City, with him on the brief, Rosston, Hort & Brussel, New York City, attys.) for landlord-respondent.

Reed B. Dawson, New York City, for the Medical Society of the County of New York, amicus curiae.

Barry Golomb, New York City, for Bronx County, Medical Society, amicus curiae.

Before RABIN, J. P., and M. M. FRANK, VALENTE, McNALLY and STEVENS, JJ.

M. M. FRANK, Justice.

This is an appeal by the tenant from the affirmance by the Appellate Term of a final order granted to the landlord in a holdover proceeding. Before discussing the problem presented we wish to express our appreciation for the assistance given this court by the parties submitting briefs, including amici curiae.

We are called upon to decide whether, under the applicable Emergency Business Space Rent Control Law (L.1945, ch. 314, as amended), ¹ the space occupied by a physician on the street floor of a building is to be classified as a store. If it is, we must affirm; if it is not, the final order must be reversed and the petition dismissed. There are no disputed questions of fact. The parties submitted the issue to the Municipal Court on an agreed statement of facts so that only a question of law was to be determined.

The tenant, Paul Lapidus, a doctor of medicine, occupies premises on the street floor of an apartment house known as 1133 Park Avenue, designated as a Class A multiple dwelling in a residence use district. The tenant has been in possession for at least thirteen years, and last executed a lease for the premises on or about October 1, 1946 for a term of one year expiring on September 30, 1947. Since then his occupancy has been that of a statutory tenant. Dr. Lapidus has never resided in the premises which, during his tenancy, have not been altered or modified for use as a physician's office. It is a fair inference, therefore, that the space let to Dr. Lapidus was occupied or designed for professional use before he took possession. Although the lease is not a part of the record, the only permissible conclusion is that, by its terms, the tenant was granted the right to occupy the premises for the practice of his profession. There is nothing in the record from which a conclusion would be justified that the landlord ever treated the space as a store. Access to the office is through the main lobby of the building, and no means of direct entrance from or exit to the street is provided. In the Municipal Court and in the Appellate Term, the landlord successfully asserted that the premises constitute a store within the meaning of and subject to the Emergency Business Space Rent Control Law (§ 8, subd. [gg], par. Sec. 8558(gg)(1)). Acting on the assumption that the section applied, the landlord, on or about February 28, 1958, offered to enter into a lease with the tenant for a three-month term to commence April 1, 1958. Taking the position that the statute was inapplicable, the tenant refused to execute the proffered lease within 20 days after its tender. Thereafter, six months were permitted to elapse, and then, upon a petition alleging that the tenant was a holdover, a precept, dated December 15, 1958, was issued by the clerk of the Municipal Court. The obvious purpose of the tender of the lease and the subsequent steps taken by the landlord was to accomplish decontrol, permissible of course, if the premises are deemed to be a store as defined by the rent control laws.

The landlord argues, and the Municipal Court upheld his contention, that Dr. Lapidus occupies a store because the premises are located on the street floor and he renders services in the ordinary course of business. A store is generally understood to be an establishment at street level which purveys merchandise for consumption, use, or adornment, ranging from doughnuts to diamonds, or renders services which run the gamut of needs from shoe shines to automobile repairs. Webster (New International Dictionary, 2d. Ed.) defines a store as '8. Any place where goods are kept for sale, whether by wholesale or retail; a shop.' That definition has been generally accepted by legal lexicographers, and by the courts in numerous decisions. See Ballentine, Second Edition; Black's Law Dictionary, Fourth Ed.; 40 Words and Phrases, p. 219, and cases cited; Levine v. Brooklyn Cornell Utilities, 185 Misc. 581, 56 N.Y.S.2d 802.

Broadly speaking and without reference to a specific provision of statutory law, we cannot accept a general definition that classifies members of the learned profession of medicine as engaging in 'the sale of personal property or the rendition of services in the ordinary course of business,' or commerce. Commercial Rent Law, § 2, subd. (c), Sec. 8522(c); Business Rent Law, § 2, subd. (l), Sec. 8552(l). Assuming the propriety of that classification when barbers were united with the company of surgeons by an act of Parliament (32 Henry VIII, C. 42), with the former confined to bloodletting and extraction of teeth, it became inappropriate after 1745, when Prliament (18 George II, C. 15) severed the craft of barbering from the profession of surgery and gave the latter the status it still enjoys.

The term store, in the natural and common acceptance of the term, is not applied to space occupied by a physician. Certainly long before the enactment of the business and the commercial rent laws, one did not seek medical treatment by entering store premises. For example, it is scarcely imaginable that Mr. Sterling, the landlord, ever said that he had gone to Dr. Lapidus' store for a medical examination. In modern times doctors usually maintain offices located either in private houses in which they reside; in multi-family structures, usually but not exclusively on the ground floors; or in office buildings, some wholly devoted to medical practitioners. It must be assumed that, in enacting the rent control statutes pertaining to stores, the legislature was fully aware of this general custom. Therefore, by established principles of statutory interpretation, the words used in legislative enactments must be given their ordinary meaning, unless the legislature by definition or from the rest of the context of a statute provides a special meaning (see McCaffrey, Statutory Construction, Sec. 31, p. 61).

The legislature has defined a 'store' in both the Commercial Rent Law (§ 2, subd. [c]) and the Business Rent Law (§ 2, subd. [l]) as:

'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; L.1945, ch. 3, as amended by L.1954, ch. 446, Sec. 8522(c), L.1945, ch. 314, as amended by L.1954, ch. 447, Sec. 8552(l).)

Although the Emergency Business Space Rent Control Law (Secs. 8551-8567) includes provisions referable to office space, no specific legislative definition pertaining to such areas is supplied. However, the Emergency Commercial Space Rent Control Law (Secs. 8521-8538) in addition to restating the definition of 'store' (§ 2, subd. [c], § 8522(c)) contained in the Emergency Business Space Rent Control Law, classifies 'office' as:

'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; § 2, subd. [d], Sec. 8522(d).)

The marked differences between the definitions of store and of office are significant and a comparison may help to clarify the legislative intent. A store must encompass space at street level, whereas an office is space located in any part of a building. If we were to assume that space occupied by a doctor on the ground floor of a building should be classified as a store (as determined by the Municipal Court in this proceeding), it follows that space other than on the ground floor, similarly occupied, would be subject to different regulatory control. In the absence of a specific declaration to that effect, we are loath to believe that the framers of the rent laws intended such an incongruous result.

There are other indicia of legislative intention. Throughout both the commercial and the business space rent laws, the statutory scheme is to segregate store from office and commercial space. With regard to a store, the legislature appears to have been satisfied to define it as it is generally referred to and understood by the public in common parlance. Elsewhere in the law, where a special meaning was intended, the legislature carefully applied words of art to characterize the term. Thus under the Commercial Rent Law (§ 8, subd. [k], Sec. 8528, subd. k) and the Business Rent Law (§ 8, subd. [k], Sec. 8558, subd. k), a store was specifically defined as space '* * * at street level and two floors above and below street level or any part thereof, provided it includes space at street level * * *.'

By a parity of reasoning, had the legislature intended that all office space at street level, including that used by doctors and others in the learned professions, be treated as store space, it would have so stated in clear language. It is noteworthy that there is not the slightest suggestion of such a purpose in any of the annual reports of the Temporary State Commission to Study Rents and Rental Conditions. Instead, the legislature continued to maintain and reaffirm the separate categories, definitions, and treatment of commercial, business, and store space. Although store space is identically defined in both the business and the...