Bec Realty Corp. v. Primack

Louis E. Klein for plaintiff. Milton E. Jacobowitz for defendant. 1950, to and including February, 1951, a waiver of the increased rent for that period? Where a tenant becomes a statutory tenant no notice of increase in rent is necessary (Marquette Realty Co. v. Feine, N. Y. L. J., May 25, 1951, p. 1952, col. 7 [App. Term, 2d Dept.]; Park View Gardens v. Greene, 274 App. Div. 1062; Paray Realty Corp. v. Goodwine, 194 Misc. 538). It is conceded that the statute permits the making of an order retroactive, fixing such increase effective as of the date of the filing of the petition (L. 1945, ch. 314, § 4, as amd). It is conceded also that during the pendency of the proceeding in the Supreme Court the landlord may not collect an amount in excess of that which the tenant was obligated to pay as a statutory tenant, id est, $65 per month. Any increase in the amount the tenant was obligated to pay was made in the Supreme Court proceeding by virtue of the power created in the Supreme Court by the Legislature. The increase in the rent was not as the result of a written notice by the landlord to a tenant which the tenant might accept or reject (Machson v. Kalz, 187 N. Y. S. § 411). The tenant having chosen to remain in possession as a statutory tenant could not avoid liability for a retroactive rent increase granted by the Supreme Court (Stern v. Equitable Trust Co., 238 N.Y. 267, 269, 270; Wasservogel v. Meyerowitz, 300 N.Y. 125, 132; Virag v. 792 Madison Ave., N. Y. L. J., Dec. 21, 1951, p. 1737 col. 5 [App. Term, 2d Dept.]). The acceptance of the emergency rent during the period when the Supreme Court proceeding was pending was not a waiver of the right to collect the reasonable rent as fixed by the Supreme Court. Both the emergency Business and Commercial Rent Laws (L. 1945, ch. 314, § 3, as amd.; L. 1945, ch. 3, § 3, as amd.) specifically provides that "Acceptance by a landlord of payment of the emergency rent by a tenant shall not be construed to be a waiver by such landlord of his right to seek increased rent from such tenant as hereinafter provided." The court in Wasservogel v. Meyerowitz (supra) at page 134 stated: "Some argument has been made that the acceptance by these landlords, while their petitions for higher rents were pending, of the lease rentals estopped them, or amounted to a waiver by them. Since they were, during that pendency of those petitions, forbidden to accept more than the rents theretofore fixed, there is no basis for charging them with either waiver or estoppel." Judgment for plaintiff, $1,024.68 and interest as demanded. Ten days' stay.