13 Misc. 2d 417 | N.Y. Sup. Ct. | 1958
An administrative proceeding was initiated by the respondent for the fixation of the maximum rent applicable to the unit occupied by the petitioner tenant. Concededly, authority existed here for fixation as of the date of first renting, April 1, 1952 (State Rent and Eviction Regulations, § 36, subd. [c]).
I am of the view that, after the court had sustained the order fixing the maximum rent as of the date specified in the order, there was no power in the local administrator to change that order in any substantial respect (Schenectady Trust Co. v. Emmons, 290 N. Y. 225; United Appraisal Co. v. Fuca, 250 App. Div. 739, affd. 277 N. Y. 726; but, see Gilmore v. Hirschman, 188 App. Div. 218). I hold, too, that the time of the effectiveness of the order — i.e., the date of its issuance (Jan. 20, 1955) or the
Nor do I find that the tenant’s prior silence as to the claimed proper effective date of the commencement of the permissible maximum rent gives him any greater right than if he had vigorously litigated the issue (Griffin v. Long Island R. R. Co., 102 N. Y. 449, 452; Schuylkill Fuel Corp. v. B. & C. Nieberg Realty Corp., 250 N. Y. 304; Statter v. Statter, 2 N Y 2d 668, 673). Indeed, it may well have been the case that, in fixing the amount of the maximum rent, the lack of a provision for retroactivity may have been a factor which was taken into account by the administrator. I do not say that that was proper. What I do say is that it is too late for the tenant to raise the issue of retroactivity after accepting the benefit without protest of the rent thus fixed. The tenant could, on his own, have protested the absence of any proviso for the retroactive effect of the order. Or, when the landlord protested the amount of the rent fixed, the tenant could have cross-protested as to the effective date of the order fixing that rent. In the circumstances here, the propriety of the order must be considered as a whole, and not in piecemeal fashion. The claimed error was obviously not a mere typographic one which might, in a proper case, warrant administrative correction.
Although there may be no express time limitation with respect to the exercise of the power given the local administrator within the area as provided by subdivision 1 of section 88 of the regula
The motion is denied and thfe petition is dismissed. An order has been signed accordingly.
Subdivision (e) of section 36 reads as follows:
Section 36. Orders where the maximum rent or other facts are in dispute, in doubt, or not known, or where maximum rent must be fixed.
* * *
(c) Where no registration statement had been filed prior to May 1, 1950 under -the Federal Act, or after that date as is required by these Regulations, the Administrator at any time upon written request of either party, or on his own initiative, may, when he cannot determine the maximum rent pursuant to paragraph (a) herein, issue an order fixing a maximum rent which may be established on the basis of the maximum rent for comparable housing accommodations. Where there are maximum rents in effect in the same establishment, these may be used as comparable housing accommodations, in the discretion of the Administrator. In cases of a change in the number of occupants or terms of occupancy in rooming houses, the maximum rent may be established upon the basis of the amount by which the landlord has customarily varied his rent for such change in the number of occupants or terms of occupancy as reflected in the maximum rents in effect on March 1, 1950. Where the landlord has no customary variation the Administrator may issue an order fixing the maximum rent for such rooms, units or occupancy based upon the rental value
* ** Subdivision 1 of section 88 reads as follows:
Section 88. Modification or revocation of orders.
1. Except as provided in Paragraph 2 or 3 of this section [here clearly inapplicable], the Local Rent Administrator may not modify, supersede or revoke any order issued under these or previous regulations, except pursuant to an order of remand issued by the State Rent Administrator, unless he finds that such order was the result of illegality, irregularity in vital matters, or fraud.