Anmark Enterprises, Inc. v. Zimring

Appellate Division of the Supreme Court of New York

Anmark Enterprises, Inc. v. Zimring

1 A.D.2d 1, 146 N.Y.S.2d 892, 1955 N.Y. App. Div. LEXIS 3790

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 20, 1955

StatusPublished

This text of 1 A.D.2d 1 (Anmark Enterprises, Inc. v. Zimring) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Anmark Enterprises, Inc. v. Zimring, 1 A.D.2d 1, 146 N.Y.S.2d 892, 1955 N.Y. App. Div. LEXIS 3790 (N.Y. Ct. App. 1955).

Pincite

Opinion

Per Curiam.

Landlord in this proceeding seeks to recover the possession of business space, consisting of the upper floors of a building, for the purpose of permanently closing down the entire building other than the ground or street floor. The basis for the application is a contention that the expense of operation of the described space exceeds the total income therefrom. Landlord contends that it is entitled to recover space which cannot be economically operated, even in the absence of any provision for such recovery under the Business Bent Law (L. 1945, ch. 314, as amd.), on the basis of constitutional principles protecting against confiscation of property.

We must take note of the fact that there is no provision in the Business Bent Law corresponding to the provision in the State Besidential Bent Law (L. 1946, ch. 274, as amd.) for withdrawal of accommodations from the rental market. Whether this is an intentional deviation or an oversight on the part of the Legislature, we do not know. We are not required in this case, however, to do what the landlord would have us do, and declare and apply constitutional principles outside of the letter of the law. The constitutional issue is not tendered because landlord does not claim that the operation of the building as a whole is uneconomical, nor does it seek to close down the entire building. Bather it is only a withdrawal of part of the building from the rental market and a partial closing which landlord seeks, retaining in operation that part of the building which is apparently profitable.

Whatever rights we might read into the statute or whatever rights we might recognize outside of the statute, we perceive no right of a landlord to sever space within a building and treat the several parts as economically separate and seek a partial withdrawal.

[3]*3The determination of the Appellate Term should be affirmed, with costs to respondents.

Peck, P. J., Breitel, Bastow and Cox, JJ., concur. Determination unanimously affirmed, with costs.

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Per Curiam.

Landlord in this proceeding seeks to recover the possession of business space, consisting of the upper floors of a building, for the purpose of permanently closing down the entire building other than the ground or street floor. The basis for the application is a contention that the expense of operation of the described space exceeds the total income therefrom. Landlord contends that it is entitled to recover space which cannot be economically operated, even in the absence of any provision for such recovery under the Business Bent Law (L. 1945, ch. 314, as amd.), on the basis of constitutional principles protecting against confiscation of property.

We must take note of the fact that there is no provision in the Business Bent Law corresponding to the provision in the State Besidential Bent Law (L. 1946, ch. 274, as amd.) for withdrawal of accommodations from the rental market. Whether this is an intentional deviation or an oversight on the part of the Legislature, we do not know. We are not required in this case, however, to do what the landlord would have us do, and declare and apply constitutional principles outside of the letter of the law. The constitutional issue is not tendered because landlord does not claim that the operation of the building as a whole is uneconomical, nor does it seek to close down the entire building. Bather it is only a withdrawal of part of the building from the rental market and a partial closing which landlord seeks, retaining in operation that part of the building which is apparently profitable.

Whatever rights we might read into the statute or whatever rights we might recognize outside of the statute, we perceive no right of a landlord to sever space within a building and treat the several parts as economically separate and seek a partial withdrawal.

[3]*3The determination of the Appellate Term should be affirmed, with costs to respondents.

Peck, P. J., Breitel, Bastow and Cox, JJ., concur. Determination unanimously affirmed, with costs.

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Bluebook (online)

1 A.D.2d 1, 146 N.Y.S.2d 892, 1955 N.Y. App. Div. LEXIS 3790, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anmark-enterprises-inc-v-zimring-nyappdiv-1955.