In re Hawun Realty Corp.

195 Misc. 162, 89 N.Y.S.2d 182, 1949 N.Y. Misc. LEXIS 2239

• Court: New York Supreme Court
• Decided: April 21, 1949
• Status: Published

Opinion

Eder, J.

The landlord instituted this proceeding under subdivision (c) of section 2 of the Business Rent Law (L. 1945, ch. 314, as amd. by L. 1948, ch. 677, § 1) to increase the tenant’s rent, based on comparability. The application was granted and the cause set down for hearing, and a condition imposed that petitioner serve a bill of particulars in accordance with the statute.

The respondent served a demand for a bill of particulars and petitioner moves for an order to vacate the demand or to modify the same by striking out items 2 to 13, inclusive.

The basis of the motion is that the items demanded are improper as no bill of particulars is required to be furnished upon such an application, and, that the landlord is only required to furnish a bill of particulars where the application is brought to increase the tenant’s rent because of lack of sufficient income (§4) when a bill of particulars must be furnished as provided by the statute. This contention has its measure of merit.

However, a bill of particulars having been ordered, its vacatur is not permissible, no appeal having been taken. The motion to vacate the demand is, accordingly, denied.

As to the branch of the motion which seeks to modify the demand by striking out the items mentioned it is granted.

The respondent seems to labor under the impression that because a bill of particulars was ordered he is therefore entitled to all the items demanded. It is an erroneous view. The decision of March 28, 1948, merely ordered service of a bill of particulars in accordance with the statute.

This application for an increase in rent being made under subdivision (c) of section 2, the items demanded as particulars are such, as thereunder, the tenant is not entitled to demand, and items 2 to 13, inclusive, are stricken out.

Settle order.