Garcia v. Deibert

Valente, J. In the first cause of action, of a complaint containing three alleged causes, plaintiffs sought to recover payments claimed to have been made in excess of the legal maximum rent for an apartment (1C) occupied by them on the third floor of premises 4 West 90th Street, New York City. It appears that during the period from June, 1957 through August, 1958, plaintiffs paid a monthly rental of $125 whereas, they now claim, the legal maximum rent for that period was $41.50 per month as fixed by the local rent office on December 29, 1948. Plaintiffs have been awarded partial summary judgment on their first cause of action, although their application was denied as to the second and third causes, which, respectively, seek treble damages and reasonable counsel fees. Significantly, except to allege and aver that they occupy apartment 1C on the third floor of the premises, plaintiffs have not in their complaint or affidavits disclosed any further data as to the nature and type of accommodations they occupy. Nothing is shown by them as to the number of rooms, the nature of the equipment supplied by the landlord or the character of the services appertaining to the apartment; nor is there any attempt made to equate the apartment presently occupied with the accommodations as they existed when the local rent office fixed the maximum legal rent of $41.50 per month. In contrast, defendant has averred that in January, 1953 the third floor of the building consisted of an apartment of four rooms and the then owner sought permission to convert the floor into two apartments of two rooms each. Moreover, the defendant avers that in May, 1955 the building was completely vacant. At that time the owner made extensive alterations throughout the entire building including the addition of two new floors to the premises. The certificate of occupancy dated October 31, 1956, filed after the completion of the alterations, showed the existence of two apartments on the third floor. It was not until December, 1956 that plaintiffs rented new space and first came onto the premises. [351] In order for plaintiffs to recover on the theory that the rent charged exceeded the maximum legal rent, it is incumbent upon them to establish that the apartment for which the rent was paid is the same accommodation for which the rent had been fixed; for the rent figure filed in 1948 is controlling only for the specific accommodations for which it was established and not for new or different accommodations. (Weiclerman v. Recklinghausen, 278 App. Div. 289, affd. 303 N. Y. 633; De Jesus v. Greenland Holding Corp., 21 Misc 2d 783; Powless v. Romney, 207 Misc. 449; Del Fuoco v. Matteson, 202 Misc. 247; Lyon v. Thompson, 199 Misc. 527, 530; Campbell v. Stilson, 21 Misc 2d 779; Maddox v. Arch Realty Corp., 21 Misc 2d 786.) Clearly from the nature of the vicissitudes of the premises, including the changes of the third floor, a triable issue was presented as to whether the apartment involved in the instant suit constitutes the same accommodations for which the prior maximum rent was stabilized. That issue should have precluded any partial summary judgment. While Powell v. Park Lex. Realty Corp. (280 App. Div. 136, affd. 304 N. Y. 960) is pertinent, it is not controlling. There the tenant was allowed to recover for a rent overcharge. However, the determination was made after a trial, and not on affidavits. But apart from that vital difference, it appears both from the opinion of the trial court and the briefs of counsel in this court, that the real question in that case was whether the alterations in the concededly same apartment, for which the maximum rent had been fixed, had resulted in a decontrol of the accommodations. Since the alteration consisted of the insertion of a partition in the living room of the apartment, so as to provide for two narrow rooms in the place of the original larger room, it was clear that no new accommodations were created and the reversal of the finding of decontrol was inevitable. (See Matter of Ross v. Caputa, 9 A D 2d 730.) Apparently the courts below were unduly influenced by, and gave too conclusive an effect to the denial by the Rent Administrator of the landlord’s antecedent application for a decontrol of the premises made pursuant to section 11 of the State Rent and Eviction Regulations. Although that determination was relevant, it was not res judicata as to the issue presented in the instant suit, viz., whether there had been established a sufficient identity between the apartment now occupied by plaintiffs and the accommodations for which the maximum rent had been fixed in 1948. Under section 11, no decontrol may be obtained unless additional housing accommodations are created even though there [352] may be material alterations which change the accommodations. (Matter of Boss v. Caputa, supra.) Hence, although the determination of the Rent Administrator denying decontrol is conclusive that no additional housing was created insofar as the third floor of the premises is concerned, it is not decisive on the issue of whether the accommodations are the same as the ones for which the registration statement was filed. The State Rent and Eviction Regulations provide an adequate remedy to tenants circumstanced as the plaintiffs to prevent the exaction of unreasonable rents. Under section 21, the Rent Administrator may establish the maximum rent in accordance with section 36 where a proper registration has not been filed by the landlord. Moreover, pursuant to section 36, the Administrator, at the behest of either the tenant or landlord, or on his own initiative, can issue an order determining the maximum rent of the claimed new accommodations. What is more, such an order can include a directive that rents paid in excess of the maximum rent so fixed be refunded to the tenants within 30 days of the effective date of the order. (See Wallbank Realty Corp. v. Smith, 21 Misc 2d 784.) None of these procedures was adopted by the parties herein. Since plaintiffs have not seen fit to avail themselves of the remedies afforded by section 36 of the State Rent and Eviction Regulations, but, instead, have relied solely upon the maximum rent fixed in 1948 as the predicate of their cause of action, they may recover, under the cases cited, supra, only if the identity of the accommodations is established. Failure of defendant to file a new registration statement or to make application under section 36 of the regulations does not make defendant automatically liable for the claimed overcharge or establish that there was an overcharge. (Weiderman v. Recklinghausen, 278 App. Div. 289, 291, supra.) Since the papers present a triable issue as to the crucial question of the identity of the accommodations, summary judgment should have been denied. (See Sillman v. Twentieth Century-Fox, 3 N Y 2d 395, 404.) The determination of the Appellate Term and the order and judgment of the City Court should be reversed, on the law, with costs to appellant, and the motion for summary judgment denied.