Dachinger v. Heller

Appellate Division of the Supreme Court of New York

Dachinger v. Heller

3 A.D.2d 399, 160 N.Y.S.2d 648, 1957 N.Y. App. Div. LEXIS 6012

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

DecidedMarch 26, 1957

StatusPublished

This text of 3 A.D.2d 399 (Dachinger v. Heller) 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

Dachinger v. Heller, 3 A.D.2d 399, 160 N.Y.S.2d 648, 1957 N.Y. App. Div. LEXIS 6012 (N.Y. Ct. App. 1957).

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Per Curiam.

The tenant appellant instituted a statutory action for damages allegedly sustained as the result of the landlord’s failure to construct a new building after evicting the tenant pursuant to the appropriate provision of the Business Rent Law (L. 1945, ch. 314, as amd.).

Under the provision of the statute a landlord, in such instance, shall be liable for all damages sustained by a tenant if he ‘ ‘ shall fail or neglect to prosecute the work with reasonable diligence ”. (L. 1945, ch. 314, § 8, subd. [c], as amd. by L. 1955, ch. 701, § 2.) Such action must be instituted within one year after it accrues (L. 1949, ch. 535, § 1, amdg. L. 1945, ch. 314, § 11). In enacting this one-year Statute of Limitations, the Legislature followed the recommendation of the N. Y. State Temporary Commission to Study Rents & Rental Conditions (N. Y. Legis. Doc., 1949, No. 52), as follows: “(e) A one-year statute of limitations is recommended so that persons who have a cause of action under the emergency laws do not sleep on their rights. The Commission believes that this amendment will make it reasonably certain that litigation arising out of these temporary laws will terminate within a reasonable time after their expiration.”

The landlord respondent, in a summary proceeding, recovered possession of the premises occupied by the tenant upon proof of his intention to construct a new building to house a supermarket, plans for which were on file and approved. The tenant vacated the premises on May 10, 1952. On June 12, 1952 demolition of the buildings on the proposed site was completed. On June 13,1952 work on a parking lot and shelter was commenced thereon and this work was completed on July 1, 1952. The tenant instituted this action on September 18, 1953.

On this chronology, the tenant’s cause of action accrued no later than July 1,1952. Commencing on this date, there was an open and notorious use of the site as a parking lot. This was an affirmative act on the part of the landlord that was contrary to the purpose for which he recovered the property. By July 1, 1952, there was notice, constructive if not actual, of a deviation on the part of the landlord from his avowed intention to build a supermarket. The tenant, having failed to institute an action within the one-year period fixed by the statute, his complaint was properly dismissed.

The judgment and order appealed from should be affirmed, with costs.

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Per Curiam.

The tenant appellant instituted a statutory action for damages allegedly sustained as the result of the landlord’s failure to construct a new building after evicting the tenant pursuant to the appropriate provision of the Business Rent Law (L. 1945, ch. 314, as amd.).

Under the provision of the statute a landlord, in such instance, shall be liable for all damages sustained by a tenant if he ‘ ‘ shall fail or neglect to prosecute the work with reasonable diligence ”. (L. 1945, ch. 314, § 8, subd. [c], as amd. by L. 1955, ch. 701, § 2.) Such action must be instituted within one year after it accrues (L. 1949, ch. 535, § 1, amdg. L. 1945, ch. 314, § 11). In enacting this one-year Statute of Limitations, the Legislature followed the recommendation of the N. Y. State Temporary Commission to Study Rents & Rental Conditions (N. Y. Legis. Doc., 1949, No. 52), as follows: “(e) A one-year statute of limitations is recommended so that persons who have a cause of action under the emergency laws do not sleep on their rights. The Commission believes that this amendment will make it reasonably certain that litigation arising out of these temporary laws will terminate within a reasonable time after their expiration.”

The landlord respondent, in a summary proceeding, recovered possession of the premises occupied by the tenant upon proof of his intention to construct a new building to house a supermarket, plans for which were on file and approved. The tenant vacated the premises on May 10, 1952. On June 12, 1952 demolition of the buildings on the proposed site was completed. On June 13,1952 work on a parking lot and shelter was commenced thereon and this work was completed on July 1, 1952. The tenant instituted this action on September 18, 1953.

On this chronology, the tenant’s cause of action accrued no later than July 1,1952. Commencing on this date, there was an open and notorious use of the site as a parking lot. This was an affirmative act on the part of the landlord that was contrary to the purpose for which he recovered the property. By July 1, 1952, there was notice, constructive if not actual, of a deviation on the part of the landlord from his avowed intention to build a supermarket. The tenant, having failed to institute an action within the one-year period fixed by the statute, his complaint was properly dismissed.

The judgment and order appealed from should be affirmed, with costs.

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Bluebook (online)

3 A.D.2d 399, 160 N.Y.S.2d 648, 1957 N.Y. App. Div. LEXIS 6012, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dachinger-v-heller-nyappdiv-1957.