Niesen v. Coster

276 A.D.2d 1076

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 25, 1950
• Status: Published

Opinion

Shientag, J.

(dissenting). I dissent upon the ground (1) that section 8 of article II of regulation II of the temporary city housing rent commission does not empower the commission to revoke a certificate of eviction for personal use where it appears that the compelling necessity of the landlord has changed subsequent to the issuance of that certificate but where it does not appear that the landlord will not occupy the apartment for his own personal use for dwelling purposes. That is the interpretation which the commission has placed upon the regulation and such an interpretation is a reasonable one and should be given great weight by the courts. Particularly is this true where, on the basis of the certificate, a final order has been issued by the Municipal Court although the tenant in possession has not yet been evicted thereunder. (2) Assuming arguendo that the commission’s interpretation of its own regulation was erroneous, the affidavits submitted in support of the application to revoke failed to set forth sufficient facts tending to show a change in the nature of the landlord’s compelling necessity. I, therefore, vote to reverse and dismiss the proceeding.

Dore, J. P., Cohn and Van Yoorhis concur in decision; Shientag, J., dissents and votes to reverse and dismiss the proceeding in an opinion in which Callahan, J., concurs.

Order affirmed, with $20 costs and disbursements to petitioner-respondent. Ho opinion.