
    Samuel Kaplan et al., Copartnership Doing Business under the Name of Midboro Management, Plaintiffs, v. Laurence A. Kahn et al., as Executors of Clementine Sostman, Deceased, et al., Defendants.
    Supreme Court, Special Term, New York County,
    October 9, 1957,
    on reargument, October 18, 1957.
    
      Irving L. Kalish for plaintiffs.
    
      Philip J. Nathan for defendants.
   Joseph A. Gavagan, J.

The lease provision for use by the tenant and members of her immediate family is conclusive. Any other occupancy was permissive only and subject to the terms of paragraph 3 of the lease. Accordingly, the individual defendants are not statutory tenants nor entitled to the protection of the rent laws and the State Rent and Eviction Regulations. It is conceded that the executors are not entitled to such protection. The motion for summary judgment is granted in all respects. Settle order.

(On reargument.)

The letters of October 11 and October 15, 1957 are considered on the application of the defendants for reargument of plaintiffs’ motion for summary judgment. In Matter of Park East Land Corp. v. Finkelstein (299 N. Y. 70) of the three persons remaining in occupancy only one was a member of the original tenant’s immediate family. The change in occupancy occurred after lease. A violation of the lease provision existed by reason of occupancy by persons not members of the tenant’s family, immediate or otherwise. Certificate of eviction was denied upon the ground that the violation was not substantial. In the course of his opinion Ftild, J., stated (p. 75): “ Whether or no strict adherence to technical concepts of landlord and tenant law would have justified eviction under ordinary conditions in ordinary times, need not detain or concern us. It is enough to say that, in the housing field at least, these are not ordinary times. If anything is clear, it is that mechanical application of common-law rules will not promote reasonable decision in cases controlled by emergency rent legislation. ’ ’

Determination here must be made in the light of the facts and circumstances of the deviation from the original tenancy, the age and condition of the tenants, the absence of any immediate family, the long occupancy by the persons now in possession and prior to the making of the last lease with the deceased widow, the knowledge of the landlord with respect to these facts and circumstances, and the intendment of the lease restriction to use by the immediate family. It is the lease provision as well as the State Rent and Eviction Regulations, particularly regulation section 56 ( subd. 4), which is under review. Apart from those questions and the issue tendered as to the function of the Rent Commission, there remains also the question whether there has been a substantial violation of the lease provision.

For these reasons, reargument is granted, and on such reargument the original disposition is modified by denying the motion as to the individual defendants, and it is otherwise adhered to. Settle order.  