22 A.D.2d 939 | N.Y. App. Div. | 1964
In a proceeding by landlords, pursuant to article 78 of the CPLR, to annul a determination of the City Rent and Rehabilitation Administrator denying their application for a certificate of eviction, the landlords appeal from a judgment of the Supreme Court, Queens County, entered April 15, 1964 upon the court’s opinion, which denied their petition and dismissed the proceeding. Judgment reversed on the law and the facts, without costs; the Administrator’s determination is annulled; and the Administrator is directed to issue the certificate of eviction. The findings of fact below inconsistent herewith are reversed, and new findings are made as indicated herein. This proceeding was brought to obtain possession of an apartment in a two-family house, for occupancy by one of the landlords who- resided elsewhere. Under such circumstances, subdivision a of section 55 of the New York City Rent, Eviction and Rehabilitation Regulations provides that a certificate shall issue where the landlord seeks, in good faith, to obtain possession for his own personal use. It is not necessary that compelling necessity be established. We find no basis in this record to impeach or even to challenge the landlords’ good faith. It is not a sufficient basis for such impeachment or challenge that the landlords might have been able to obtain possession of the other apartment in the premises, which was decontrolled (Matter of Reres v. Gabel, 19 A D 2d 724). Ughetta, Kleinfeld, Hill and Rabin, JJ., concur; Beldoek, P. J., dissents and votes to affirm the judgment, with the following memorandum: On October 18, 1962 one McCarthy, the owner of the two-family house in question, contracted to sell -the property to the petitioner Joseph Rabuse, who on October 30, 1962 assigned a one-half interest in the contract to the petitioner Mary McCabe. At the time of the execution of the contract, the second-floor apartment was vacant. The contract provided that such apartment be delivered vacant at the title closing. This provision was subsequently deleted by mutual agreement. On November 15, 1962 the said second-floor apartment was leased to a third person at a decontrolled rental. On January 25, 1963 both