Flint & Bradley, Inc. v. Morris

Hammer, J. Summary proceeding for immediate use and possession by landlord of second floor of landlord’s building, pursuant to subdivision (d) of section 8 of the Commercial Bent Law (L. 1945, ch. 3, as amd.) The lease in this case demised to the tenant the second and third floors “to be used and occupied only for residence with privilege to use second floor as sign shop and studio upon the conditions and covenants following ”. Appellant claims that the landlord may not dispossess the tenant from a portion only of the premises. As I read the agreement the premises were let for two separate uses — commercial use of the second floor, and residence use of the third floor, and the tenant holds over after the expiration of his term. Any right of the tenant to possession is derived solely and exclusively from the emergency statute. It is conceded that from the beginning the second floor has been used for commercial purposes; down to the time the tenant and his wife acquired a home at Huntington, Long Island, about a year before the trial, they lived on the third floor, and since that time it has been occupied by his brother and sister-in-law. At page 39 of the stenographer’s minutes we find the following: “ Q And when you do have emergency and rush work do you find occasion often to sleep over there?” (on the third floor) “ A Yes, sir, I do.” ■ Both floors are clearly separable from each other in that each has its separate means of access; and the third floor is completely shut off from the second floor commercial space. In the New York Law Journal of July 19th last (p. 89, col. 3, 4) we find opinion No. 33 of the State Bent Administrator relative to combined business and dwelling uses which reads in part as follows: “ The business and dwelling portions are clearly separable where they are in separate structures. Where both portions are in the same structure they are separable if the following conditions exist-: “ (1) There are separate means of access; and “ (2) The business and dwelling portions are each usable for their respective purposes without access to the other portion; and “ (3) The dwelling portion is, or can readily be, completely shut off from the business portion. [1032] “ Where premises do not in some particular respect comply with, the test of separability just stated, they may nevertheless be found separable if it is very clear that, in accordance with the standards and practices of the community, it is feasible for the tenant to occupy the dwelling portion while the business portion is used by some other person.” To the same effect were the rulings of the Office of Price Administration in the matter. Clearly the tenant being out of possession of the third floor cannot claim any of the rights of a statutory tenant as to that floor (Belenky v. Colombo, 275 App. Div. 99; and see Wolf v. Matisz, 98 N. Y. S. 2d 765, decided by this court, March, 1950, term, leave to appeal denied by Appellate Division, N. Y. L. J., April 18, 1950, p. 1356, col. 1). The evidence establishes that the landlord has fully complied with all the requirements of the Commercial Bent Law entitling it to possession of the second floor space. The final order should be affirmed, with $25 costs.