204 Misc. 668 | N.Y. Sup. Ct. | 1953
This is a motion to dismiss the complaint and for - incidental relief.
The complaint fails to allege any facts indicating that any of the plaintiffs have a presently existing contractual right to complain of any of the acts of the defendants above referred to. Indeed, the plaintiffs are admittedly statutory tenants whose leases have expired.
In Penfield v. Murray Hill Holding Corp. (281 App. Div. 675) statutory tenants brought an action to require their landlord to restore various services which had been discontinued,
In Fireman v. Newcraft Associates (200 Misc. 894), Mr. Justice Bbeitel, now a member of the Appellate Division of this department, in dismissing the complaint, said (pp. 898-900): “ There is further ground upon which plaintiffs are limited to administrative remedies before the Temporary State Housing Bent Commission. The leases involved have expired by their terms. While the terms of such leases are by virtue of the statutes projected during the period of the emergency, the tenants are nevertheless statutory tenants. Consequently, any rights they have are statutory, and not contractual. * * * As a matter of broad policy the matters in issue here should be handled at an administrative level, in the absence of a clear contractual right. Any other result would clutter overcrowded courts with the detailed regulation of disputes by the landlords and tenants. * * * In the absence of contractual rights, the courts cannot intervene and, moreover, should not intervene, first, to destroy a legislatively propounded pattern, and second, to move into the courts a scheme of regulation for which the courts are not equipped.”
Subdivision (b) of section 5 of the State Besidential Bent Law (L. 1946, ch. 274, as amd. by L. 1950, ch. 250) empowers the Temporary State Housing Bent Commission to issue regulations “ to assure [to statutory tenants] the main
The motion to dismiss the present complaint pursuant to rule 106 of the Buies of Civil Practice, on the ground of lack of jurisdiction must clearly be granted, for the reasons indicated, insofar as the complaint is based upon the claim that the defendants are curtailing or reducing services and are threatening to curtail or reduce other services.
The complaint likewise fails to allege facts sufficient to confer jurisdiction upon the courts as to the plaintiffs’ claim that the conversions of apartments to commercial or business purposes violate rights of the plaintiffs as statutory tenants. The allegation that the conversions are being made pursuant to a superseding certificate of occupancy obtained from the department of housing and buildings as a result of false representations is of no avail to plaintiffs, for there is no allegation that the superseding certificate of occupancy has ever been revoked by the department notwithstanding the fact that it appears from the allegations of the complaint that the falsity of the representations is known to the department. The only action taken by the department, according to the complaint, appears to have
In view of this disposition it is unnecessary to consider that branch of the motion which is made pursuant to rule 107 of the Buies of Civil Practice. Although it appears from the affidavits submitted in connection with the application under rule 107 (supra), that the tenants did complain of the conversions to the Bent Commission, it also appears that the Bent Administrator held that the issues with respect to the claim that the conversions were accompanied by violations should be determined in a proceeding then pending before the department of housing and buildings. No protest of this determination was made by the tenants nor was any appeal from the determination taken.
Whether a complaint alleging facts establishing that the violations accompanying the conversion of apartments to commercial and business purposes are of a serious nature and imperil the safety of the plaintiffs would confer jurisdiction upon this court without the necessity of exhausting the plaintiffs’ remedies before the Bent Commission is a question which is not presented for determination on the present record since the present complaint contains no such allegations and must therefore be dismissed under that branch of the motion which is predicated upon the provisions of rule 106 of the Buies of Civil Practice.
Plaintiffs may serve an amended complaint within ten days from the service of a copy of this order, with notice of entry.