Lituchy v. Lathers

35 Misc. 2d 556, 232 N.Y.S.2d 627, 1962 N.Y. Misc. LEXIS 3135

Opinion

Per Curiam.

The term ‘ ‘ use ’ ’ of premises for illegal purposes implies doing of something customarily or habitually upon the premises. The evidence, therefore, must reveal customary and habitual illegal use of the premises by the tenant (U. C. L. Realty Co. v. Brown, 193 Misc. 801; Florgus Realty Corp. v. Reynolds, 123 Misc. 161; Tenement House Dept, of City of N. Y. v. McDevitt, 215 N. Y. 160; 167 East 86th St. Corp. v. Wienecke, 132 Misc. 491; Lazarowitz v. Kazan, 122 Misc. 202; Janowitz v. Jenkins, 8 Misc 2d 1077; Estate of Shaff v. Stein, 171 Misc. 376). The evidence by landlord here fell far short of establishing such use. The single, isolated conviction for possessing policy slips was not sufficient to establish that tenant was using the premises for an illegal purpose or use within the meaning of subdivision 5 of section 1410 of the Civil Practice Act or of subdivision 4 of section 52 of the State Rent and Eviction Regulations.

The final order should be reversed, with $30 costs, and final order directed in favor of tenant, with costs.

Concur — Hecht, J. P., Hofstadter, and Tilzer, JJ.

Final order reversed, etc.