Volpicelli v. Leventhal

Appellate Division of the Supreme Court of New York

Volpicelli v. Leventhal

48 A.D.2d 660, 367 N.Y.S.2d 541, 1975 N.Y. App. Div. LEXIS 9668

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

DecidedMay 5, 1975

StatusPublished

Cited by1 cases

This text of 48 A.D.2d 660 (Volpicelli v. Leventhal) 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

Volpicelli v. Leventhal, 48 A.D.2d 660, 367 N.Y.S.2d 541, 1975 N.Y. App. Div. LEXIS 9668 (N.Y. Ct. App. 1975).

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Opinion

In a proceeding pursuant to CPLR article 78 to review appellant’s determination, dated June 26, 1973, which revoked the district rent director’s order and denied petitioners’ application for a certificate of eviction, the appeal is from a judgment of the Supreme Court, Kings County, entered September 12, 1974, which annulled the said determination and directed appellant to issue the certificate of eviction. Judgment reversed, on the law, with $20 costs and disbursements, determination confirmed and petition dismissed on the merits. The record substantiates the finding, as Special Term itself observed, of a retaliatory motive for seeking the apartment. In such instance, the commissioner’s determination should not have been annulled (Matter of Santora v Temporary State Housing Rent Comm, 11 AD2d 776; Matter of Link v Caputa, 10 AD2d 882; Matter of Acevedo v Weaver, 6 AD2d 835). Proof that a landlord is motivated by an intention other than to gain a place in which to live negates good faith (cf. Matter of Rosenbluth v Finkelstein, 300 NY 402, 405). Such motivation is not overcome by the fact that the landlord may also intend to move. Gulotta, P. J., Rabin, Hopkins, Martuscello and Shapiro, JJ., concur.

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In a proceeding pursuant to CPLR article 78 to review appellant’s determination, dated June 26, 1973, which revoked the district rent director’s order and denied petitioners’ application for a certificate of eviction, the appeal is from a judgment of the Supreme Court, Kings County, entered September 12, 1974, which annulled the said determination and directed appellant to issue the certificate of eviction. Judgment reversed, on the law, with $20 costs and disbursements, determination confirmed and petition dismissed on the merits. The record substantiates the finding, as Special Term itself observed, of a retaliatory motive for seeking the apartment. In such instance, the commissioner’s determination should not have been annulled (Matter of Santora v Temporary State Housing Rent Comm, 11 AD2d 776; Matter of Link v Caputa, 10 AD2d 882; Matter of Acevedo v Weaver, 6 AD2d 835). Proof that a landlord is motivated by an intention other than to gain a place in which to live negates good faith (cf. Matter of Rosenbluth v Finkelstein, 300 NY 402, 405). Such motivation is not overcome by the fact that the landlord may also intend to move. Gulotta, P. J., Rabin, Hopkins, Martuscello and Shapiro, JJ., concur.

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Bluebook (online)

48 A.D.2d 660, 367 N.Y.S.2d 541, 1975 N.Y. App. Div. LEXIS 9668, Counsel Stack Legal Research, https://law.counselstack.com/opinion/volpicelli-v-leventhal-nyappdiv-1975.

Opinion

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