Walter & Samuels, Inc. v. New York City Conciliation and Appeals Bd.

• Decision Date: 09 June 1981
• Citation: 81 A.D.2d 212,439 N.Y.S.2d 390
• Court: New York Supreme Court — Appellate Division
• Parties: In the Matter of the Application of WALTER & SAMUELS, INC., as Agent, Petitioner-Appellant, for a judgment pursuant to Article 78 of the Civil Practice Law and Rules, v. NEW YORK CITY CONCILIATION AND APPEALS BOARD, Respondent-Respondent.

Page 390

439 N.Y.S.2d 390

81 A.D.2d 212

In the Matter of the Application of WALTER & SAMUELS, INC.,

as Agent, Petitioner-Appellant, for a judgment

pursuant to Article 78 of the Civil

Practice Law and Rules, v. NEW YORK CITY CONCILIATION AND APPEALS BOARD, Respondent-Respondent.

Supreme Court, Appellate Division,

First Department.

June 9, 1981.

Carl F. Schwartz, New York City, of counsel (Sidamon-Eristoff, Morrison, Warren, Ecker & Schwartz, New York City), for petitioner-appellant.

William E. Rosen, New York City, of counsel (Ellis S. Franke, New York City), for respondent-respondent.

Before KUPFERMAN, J. P., and BIRNS, SULLIVAN, SILVERMAN and BLOOM, JJ.

KUPFERMAN, Justice.

In this Article 78 proceeding, we are concerned with an apartment at 1155 Park Avenue in Manhattan, the tenant of which is the "Permanent Mission of Syria to the United Nations".

The apartment in question was first rented in 1968 to the then Ambassador and Permanent Representative of the Syrian Arab Republic to the United Nations, Dr. George J. Tomeh. At the time of the renewal of the lease in 1974, the then Ambassador and Permanent Representative to the United Nations, Dr. Haissam Kellani, requested that the lease be placed in the name of the Permanent Mission of Syria to the United Nations, and when renewed in 1977 by the then Ambassador and Permanent Representative, H. E. Mowaffak Allaf, the lease continued in the name of the Permanent Mission.

At the end of May 1978, the agent of the premises offered a renewal lease to the Mission, but withdrew it a week later in June. At the end of July, despite the withdrawal, the present Ambassador and Permanent Representative, H. E. Hammoud El-Choufi, attempted to accept the offer of renewal for one year, stating that it was immaterial to him whether the lease was in the name of the Mission or in his name individually.

The agent of the premises then applied to the New York City Conciliation and Appeals Board (CAB) contending that under Section 54(e) of the Code of the Real Estate Industry Stabilization Association of New York City, Inc., the dwelling unit was not occupied as the tenant's primary residence, and therefore this tenant was not entitled to a renewal lease.

The CAB, while acknowledging that Section 8605 of the Unconsolidated Laws as amended by Section 2 of Chapter 373 of the Laws of 1971, provides that rent regulation may not apply to housing accommodation "not occupied by the tenant in possession as his primary residence", nonetheless decided in an opinion signed by four members that:

"Based on all the evidence of record, including the undisputed fact that the subject apartment is being utilized by the Syrian Ambassador to the United Nations as his primary place of residence, the Board determines that the owner's application for permission to refuse to offer the tenant a renewal lease is denied."

There was a concurring opinion by three members to the effect that their position was not on the basis of primary residence but rather that "the owner had actually offered the tenant a renewal lease". It is assumed that this was considered by them as a form of estoppel. ^*

Special Term denied the petition of the agent of this rent stabilized apartment building to set aside the CAB determination on the ground that the CAB is vested with broad discretion, and an administrative determination which has a reasonable basis should be confirmed.

The background for the Rent Stabilization Law and for the Conciliation and Appeals Board and its Code can be found in "The New York Rent Stabilization Law of 1969", 70 Col.L.Rev. 156 (1970); "Emergency Tenant Protection in New York: Ten Years of Rent Stabilization", by Diane Ungar, 7 Fordham Urban L.J. 305 (1978-79); 8200 Realty Corp. v. Lindsay, 27 N.Y.2d 124, 313 N.Y.S.2d 733, 261 N.E.2d 647; Tenants' Association v. Appeals Board, 59 A.D.2d 121, 397 N.Y.S.2d 828. After the enactment of the Rent Stabilization Law, Governor Rockefeller in his Message to the Legislature in 1971 stated that "to remove the undesirable effects of rent control without weakening legitimate tenant protections" there should be decontrol of "any apartment not used as a primary residence of the tenant". New York State Legislative Annual--1971 Governor's Messages to the Legislature, p. 545. His memorandum set forth that there should be decontrol "if it is established upon application of the landlord that the tenant maintains his primary residence elsewhere. Any facts or circumstances bearing upon the question of residency such as the address from which the tenant votes, files his tax returns, etc. would be relevant evidence of primary residence." New York State Legislative Annual, supra, 314. He further stated:

"3. Decontrol of Non-primary Residences

Thousands of controlled apartments in New York City and elsewhere are rented by people who do not live in them. They use the apartments as a convenience, staying in them occasionally when they come to the City. Some even use them for storage. Continued controls on these apartments, indirectly subsidizing...