In re Rutherford Estates, Ltd.

Appellate Division of the Supreme Court of New York

In re Rutherford Estates, Ltd.

277 A.D.2d 1

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

DecidedMay 23, 1950

StatusPublished

This text of 277 A.D.2d 1 (In re Rutherford Estates, Ltd.) 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

In re Rutherford Estates, Ltd., 277 A.D.2d 1 (N.Y. Ct. App. 1950).

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Opinions

Per Curiam.

Since the fixing of rent at Special Term in this case, under the square foot alternative method provided by subdivision 2 of section 4 of the Commercial Rent Law, the [2]*2law has been amended to limit any increase in rent under this provision to 15% (L. 1950, ch. 327). The amendment was made to take effect immediately and the limitation was explicitly made applicable to pending proceedings. Appellants are willing to pay the 15% increase, but respondent contends that the limitation is not applicable to the instant case because a proceeding should not be considered pending after its determination by the trial court, although an appeal is pending. Respondent also points to a report of the New York State Temporary Commission to Study Rents and Rental Conditions, which proposed this amendment, which report states that as modified the provision includes all pending actions and proceedings but is not intended to include cases on appeal. Whatever may have been the intention of that commission at the time the amendment was suggested, the amendment as adopted expressly embraces pending proceedings without qualification, and we take the view that the limitation was intended to apply to all proceedings not finally determined.

Were we to agree with respondent on this point, however, the ruling would be academic as applied to this case because we would be obliged to remand the case for further proceedings in accordance with our decision in Matter of Barry Equity Corp. (Marcia Hat Co.) (276 App. Div. 685). The proceeding would certainly then become a pending proceeding and the 15% limitation would apply. Under the circumstances, it is unnecessary to remand the case and the order appealed from should be modified to fix the rent for the respective tenants as follows:

Name of Tenant Rent

Dorman Products Inc......................$2,396.37

Chelsea Elevator Co....................... 2,898.00

Lobby Display & Frame Corp.............. 2,666.09

The order appealed from should be modified accordingly and, as so modified, affirmed, without costs. Settle order.

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Per Curiam.

Since the fixing of rent at Special Term in this case, under the square foot alternative method provided by subdivision 2 of section 4 of the Commercial Rent Law, the [2]*2law has been amended to limit any increase in rent under this provision to 15% (L. 1950, ch. 327). The amendment was made to take effect immediately and the limitation was explicitly made applicable to pending proceedings. Appellants are willing to pay the 15% increase, but respondent contends that the limitation is not applicable to the instant case because a proceeding should not be considered pending after its determination by the trial court, although an appeal is pending. Respondent also points to a report of the New York State Temporary Commission to Study Rents and Rental Conditions, which proposed this amendment, which report states that as modified the provision includes all pending actions and proceedings but is not intended to include cases on appeal. Whatever may have been the intention of that commission at the time the amendment was suggested, the amendment as adopted expressly embraces pending proceedings without qualification, and we take the view that the limitation was intended to apply to all proceedings not finally determined.

Were we to agree with respondent on this point, however, the ruling would be academic as applied to this case because we would be obliged to remand the case for further proceedings in accordance with our decision in Matter of Barry Equity Corp. (Marcia Hat Co.) (276 App. Div. 685). The proceeding would certainly then become a pending proceeding and the 15% limitation would apply. Under the circumstances, it is unnecessary to remand the case and the order appealed from should be modified to fix the rent for the respective tenants as follows:

Name of Tenant Rent

Dorman Products Inc......................$2,396.37

Chelsea Elevator Co....................... 2,898.00

Lobby Display & Frame Corp.............. 2,666.09

The order appealed from should be modified accordingly and, as so modified, affirmed, without costs. Settle order.

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Bluebook (online)

277 A.D.2d 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-rutherford-estates-ltd-nyappdiv-1950.