Merendino v. Herman

Appellate Division of the Supreme Court of New York

Merendino v. Herman

15 A.D.2d 818, 225 N.Y.S.2d 473, 1962 N.Y. App. Div. LEXIS 11258

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

DecidedFebruary 26, 1962

StatusPublished

Cited by3 cases

This text of 15 A.D.2d 818 (Merendino v. Herman) 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

Merendino v. Herman, 15 A.D.2d 818, 225 N.Y.S.2d 473, 1962 N.Y. App. Div. LEXIS 11258 (N.Y. Ct. App. 1962).

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Opinion

[819]*819In our opinion, the said Administrator’s determination, dated March 15, 1961, was based upon a finding that the subject premises were not being managed in violation of section 83 of the Multiple Dwelling Law, in that the petitioner’s (the landlord’s) daughter and son-in-law, as well as a porter, all of whom in concert were carrying on the duties of a janitor, resided within 200 feet of the premises; and such finding cannot be held to lack a reasonable basis on the facts in the record before us. At the suggestion of the said Administrator and in the light of counsel’s statement that a notice of violation of section 83 has been filed against the premises by the municipal authorities, further administrative proceedings should be conducted to give the petitioner (the landlord) the opportunity to furnish additional proof upon the issue of whether the premises are being maintained in violation of law, as well as upon the other issues. However, we are also of the opinion that action by municipal authorities may not properly be made a prerequisite for the issuance of a certificate of eviction in a proceeding brought for the purpose of obtaining an apartment for a resident janitor in order to correct a violation of section 83 of the Multiple Dwelling Law. The existence of the violation, in and of itself, is compelling necessity for the issuance of a certificate to remove some tenant where no reasonable alternative apartment is available (cf. Matter of Levine v. Abrams, 1 A D 2d 213, 219). Ho appeal has been taken from the order granting reargument. Hor have we elected to exercise our discretion under section 562-a of the Civil Practice Act, to review such order, in view of the fact that the recital of the matters considered therein specifies, in addition to the papers considered on the original motion, only the testimony adduced at an informal hearing; and we have not been furnished with a transcript or return as to such testimony. Beldock, P. J., Ughetta, Hill, Rabin and Hopkins, JJ., concur.

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[819]*819In our opinion, the said Administrator’s determination, dated March 15, 1961, was based upon a finding that the subject premises were not being managed in violation of section 83 of the Multiple Dwelling Law, in that the petitioner’s (the landlord’s) daughter and son-in-law, as well as a porter, all of whom in concert were carrying on the duties of a janitor, resided within 200 feet of the premises; and such finding cannot be held to lack a reasonable basis on the facts in the record before us. At the suggestion of the said Administrator and in the light of counsel’s statement that a notice of violation of section 83 has been filed against the premises by the municipal authorities, further administrative proceedings should be conducted to give the petitioner (the landlord) the opportunity to furnish additional proof upon the issue of whether the premises are being maintained in violation of law, as well as upon the other issues. However, we are also of the opinion that action by municipal authorities may not properly be made a prerequisite for the issuance of a certificate of eviction in a proceeding brought for the purpose of obtaining an apartment for a resident janitor in order to correct a violation of section 83 of the Multiple Dwelling Law. The existence of the violation, in and of itself, is compelling necessity for the issuance of a certificate to remove some tenant where no reasonable alternative apartment is available (cf. Matter of Levine v. Abrams, 1 A D 2d 213, 219). Ho appeal has been taken from the order granting reargument. Hor have we elected to exercise our discretion under section 562-a of the Civil Practice Act, to review such order, in view of the fact that the recital of the matters considered therein specifies, in addition to the papers considered on the original motion, only the testimony adduced at an informal hearing; and we have not been furnished with a transcript or return as to such testimony. Beldock, P. J., Ughetta, Hill, Rabin and Hopkins, JJ., concur.

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Bluebook (online)

15 A.D.2d 818, 225 N.Y.S.2d 473, 1962 N.Y. App. Div. LEXIS 11258, Counsel Stack Legal Research, https://law.counselstack.com/opinion/merendino-v-herman-nyappdiv-1962.

Opinion

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