Fabricant v. Rector, Churchwardens & Vestrymen

Appellate Division of the Supreme Court of New York

Fabricant v. Rector, Churchwardens & Vestrymen

91 A.D.2d 906, 457 N.Y.S.2d 791, 1983 N.Y. App. Div. LEXIS 16180

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

DecidedJanuary 6, 1983

StatusPublished

Cited by1 cases

This text of 91 A.D.2d 906 (Fabricant v. Rector, Churchwardens & Vestrymen) 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.

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Fabricant v. Rector, Churchwardens & Vestrymen, 91 A.D.2d 906, 457 N.Y.S.2d 791, 1983 N.Y. App. Div. LEXIS 16180 (N.Y. Ct. App. 1983).

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Opinion

— Order and judgment (one paper), Supreme Court, New York County (Kirschenbaum, J.), entered January 20, 1982, which, inter alia, granted defendant-respondent-appellant (landlord) summary judgment dismissing the complaint, which sought to declare the plaintiffs-appellants-respondents’ (tenants) right to be subject to the Rent Stabilization Law of 1969 ([RSL], Administrative Code of City of New York, ch 51, tit YY), and denied defendant’s motion to the extent it sought to dismiss the complaint upon the ground that it is a charitable religious organization exempt from the RSL and the Emergency Tenant Protection Act of 1974 ([ETPA], L 1974, ch 576, § 4), modified, on the law, to deny defendant’s motion for summary [907]*907judgment in toto, and otherwise affirmed, without costs. Tenants commenced this action seeking to declare their right to be subject to the RSL and the ETPA. They contend that, although the subject premises, which are adjoining and are part of a larger parcel of contiguous buildings and units, are listed as two separate addresses, and each contains less than six units, there are sufficient common characteristics so that, as a matter of law, under the “horizontal multiple dwelling rule”, they must be treated as a single multiple dwelling containing more than six units. Although both landlord and tenant maintain that there are no facts in dispute such as would preclude summary judgment, each in effect disputes the other’s factual recitation of the factors determining commonality as being unsupported in the record. Special Term sought to resolve these issues of fact, rather than determining whether such issues existed. To grant summary judgment, it must clearly appear that no material and triable issue of fact is presented. “Issue-finding, rather than issue-determination, is the key to the procedure.” (Esteve v Abad, 271 App Div 725, 727; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404.) Concur — Carro, J. P., Silverman, Bloom and Kassal, JJ.

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— Order and judgment (one paper), Supreme Court, New York County (Kirschenbaum, J.), entered January 20, 1982, which, inter alia, granted defendant-respondent-appellant (landlord) summary judgment dismissing the complaint, which sought to declare the plaintiffs-appellants-respondents’ (tenants) right to be subject to the Rent Stabilization Law of 1969 ([RSL], Administrative Code of City of New York, ch 51, tit YY), and denied defendant’s motion to the extent it sought to dismiss the complaint upon the ground that it is a charitable religious organization exempt from the RSL and the Emergency Tenant Protection Act of 1974 ([ETPA], L 1974, ch 576, § 4), modified, on the law, to deny defendant’s motion for summary [907]*907judgment in toto, and otherwise affirmed, without costs. Tenants commenced this action seeking to declare their right to be subject to the RSL and the ETPA. They contend that, although the subject premises, which are adjoining and are part of a larger parcel of contiguous buildings and units, are listed as two separate addresses, and each contains less than six units, there are sufficient common characteristics so that, as a matter of law, under the “horizontal multiple dwelling rule”, they must be treated as a single multiple dwelling containing more than six units. Although both landlord and tenant maintain that there are no facts in dispute such as would preclude summary judgment, each in effect disputes the other’s factual recitation of the factors determining commonality as being unsupported in the record. Special Term sought to resolve these issues of fact, rather than determining whether such issues existed. To grant summary judgment, it must clearly appear that no material and triable issue of fact is presented. “Issue-finding, rather than issue-determination, is the key to the procedure.” (Esteve v Abad, 271 App Div 725, 727; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404.) Concur — Carro, J. P., Silverman, Bloom and Kassal, JJ.

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91 A.D.2d 906, 457 N.Y.S.2d 791, 1983 N.Y. App. Div. LEXIS 16180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fabricant-v-rector-churchwardens-vestrymen-nyappdiv-1983.

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