
    In the Matter of 239, 243 and 247 Corp., Appellant, v. Hortense W. Gabel, as City Rent and Rehabilitation Administrator, Respondent, and Caroline Sandy et al., Intervenors Respondents.
    Argued February 23,1967;
    decided May 23, 1967.
    
      
      Copal Mints and Max Steinberg for appellant.
    The Appellate Division has erred as a matter of law in upholding the Administrator ’s ruling that the 7 feet by 7 feet “ legal ” rooms are not “ rooms ” within the meaning of section 57 of the Administrator’s Regulations. (Matter of Mayfair-York Corp. v. McGoldrick, 286 App. Div. 154; Matter of Swalbach v. State Liq. Auth., 7 N Y 2d 518; Matter of Mayfair-York Corp. v. Weaver, 13 Misc 2d 829, 9 A D 2d 613; Matter of Sacks v. McGoldrick, 279 App. Div. 787; Matter of Paretta v. McGoldrick, 284 App. Div. 1034; Matter of Rosin v. McGoldrick, 279 App. Div. 1080; Matter of Jaffe v. McGoldrick, 285 App. Div. 889.)
    
      Harry Michelson and Maurice A. Reichman for respondent.
    The Administrator’s refusal to consider a 41-square foot area as a room was a reasonable exercise of judgment and discretion which was authorized by the statute. (Matter of Mayfair-York Corp. v. Weaver, 13 Misc 2d 829, 9 A D 2d 613, 9 A D 2d 747; Matter of Sacks v. McGoldrick, 279 App. Div. 787, 303 N. Y. 1015; Matter of Paretta v. McGoldrick, 284 App. Div. 1034; Matter of Brodsky v. Weaver, 3 A D 2d 995; Matter of Jaffe v. McGoldrick, 285 App. Div. 889; Matter of Rosin v. McGoldrick, 279 App. Div. 1080; Matter of Lion Brewery of New York City v. Weaver, 8 A D 2d 173, 7 N Y 2d 928; Matter of Park East Land Corp. v. Finkelstein, 299 N. Y. 70; Matter of Mounting & Finishing Co. v. McGoldrick, 294 N. Y. 104; Matter of Marburg v. Cole, 286 N. Y. 202; Matter of Capone v. Weaver, 6 N Y 2d 307; Matter of Friedman v. Weaver, 3 N Y 2d 123; Matter of Hotel Assn. of New York City v. Weaver, 3 N Y 2d 206; Matter of First Terrace Gardens v. McGoldrick, 1 N Y 2d 1.)
    
      Robert Sugerman for intervenors-respondents.
    I. The regulation involved is not challenged. It was promulgated by the Administrator with full statutory authority and his interpretation of it is conclusive. (Matter of Lion Brewery of New York City v. Weaver, 8 A D 2d 173, 7 N Y 2d 928; Lightbody v. Russell, 293 N. Y. 492; Matter of Luxenberg v. Stichman, 2 A D 2d 605; Matter of Stracquadanio v. Department of Health, 285 N. Y. 93; Matter of Friedman v. Weaver, 3 N Y 2d 123.) II. There was a reasonable basis for the Administrator’s determination that the space in question does not constitute a room within the meaning of the rent law and regulations.
   Yak Yoorhis, J.

This article 78 proceeding is brought by a landlord to review a determination of the City Bent and Behabilitation Administrator. The landlord has applied to remodel and renovate three old-law tenements (constructed in 1884) located at 239, 243 and 247 West 21st Street, Manhattan, on the basis that they are underoccupied. These premises contain 30 flats, which are proposed to be converted into 60 modern apartments. Amicable arrangements for remodeling were made with occupants of 16 of these old-law flats. A.t issue in this litigation are five more.

The Administrator is given considerable discretion by the enabling acts (L. 1962, ch. 21, § 1, subd. 6; Local Laws, 1962, No. 20 of City of New York as amd., adding Administrative Code, ch. 51, tit. Y, § 51-5.0, subd. g, par. [1]). She is authorized under section 57 of the Bent, Eviction and Behabilitation Begulations to determine whether the eviction of the tenants in particular cases is consistent with the purpose of the Bent Law and these regulations, and to require suitable provision to be made for relocation. Moreover, the remodeling plans are required, subject to review, to be approved by the ‘1 City agency having jurisdiction thereof ”, in this case the District Bent and Behabilitation Director of the Lower Manhattan District Bent Office, who approved the remodeling plans.

The appeal presents solely a question of law. At issue is the question whether the District Director and the Administrator had jurisdiction to approve any remodeling plans of these properties. Under paragraph (1) of subdivision a of section 57 of the Bent, Eviction and Behabilitation Begulations no remodeling plans are to be approved for the purpose of subdividing an under occupied housing accommodation containing less than six rooms, exclusive of bathrooms and kitchen. The issue here is whether each of these five flats contained as many as six rooms in view of the circumstance that one of the rooms in each flat measures approximately 7 by 6% feet in dimensions. The Administrator has ruled that it is too small to be a room and that, therefore, the flat cannot be remodeled. If it were big enough to be a room, then the District Director and the Administrator could have considered the adequacy and merits of the remodeling and rehabilitation plan, as did the District Director who approved the project. Whether a public officer has power to exercise discretion over a matter, it is well settled, presents a question of law. The Administrator did not reach the point of exercising her discretion concerning whether this project Avas good, bad or indifferent or whether the relocation plans for the tenants were adequate, because she found that this Avas not a room. Special Term overruled her determination that it was not a room; the Appellate Division, in reversing, ruled that the Administrator had discretion to decide whether it is a room or not. Thus, in effect, the Appellate DiAdsion held that she had discretion to determine whether she had power to exercise discretion regarding the merits of this remodeling project. Special Term held, as matter of law, that she had no discretion to determine whether this was or was not a room, and remanded the matter to her for consideration of its merits. The Appellate Division considered that the Administrator could decide for herself when a room is not a room, and that the courts could do nothing about it even though she might make different and contradictory decisions concerning what dimensions or square footage of floor space would constitute a room in different parts of the city.

The Department of Buildings was consulted and stated unequivocally that this Avas a legal room in conformity with the applicable building code and regulations. Being an old-law tenement, no applicable provision of the Multiple DAvelling Law prescribed any minimum legal size of rooms (Multiple Dwelling Law, § 366, subd. 4).

The Appellate Division held that the circumstance that this room could legally he maintained did not necessarily signify that it was a room Avithin the meaning of section 57 of the Rent, Eviction and Rehabilitation Regulations. Citing Matter of Lion Brewery v. Weaver (8 A D 2d 173, 175, affd. 7 N Y 2d 928) — involving different facts — the Appellate Division determined that the Administrator has a wide range of discretion to determine Avhether she is empowered to exercise discretion regarding remodeling projects, and said that “ The Administrator Avas not bound as a matter of law to conclude the area was a room.5 ’ The Appellate Division continued by saying that “ Numerous administrative determinations that enclosed areas do not constitute a room within the meaning of the Rent Laws have been upheld by the courts ” citing Matter of Mayfair-York Corp. v. Weaver (13 Misc 2d 829, affd. 9 A D 2d 613; Matter of Sacks v. McGoldrick, N. Y. L. J. Nov. 14, 1951, p. 1230, col. 3, affd. 279 App. Div. 787, and Matter of Paretta v. McGoldrick, N. Y. L. J., July 26, 1954, p. 2, col. 6, affd. 284 App. Div. 1034).

An examination of those decisions shows, however, that the Mayfair-York and Sacks cases involved multiple dwellings erected in 19*09 and 1913, which meant that they were not old-law tenements and that the area of the alleged rooms was, therefore, illegal. A room which is of illegal size could hardly he classified as being a room within the meaning of any law (see Multiple Dwelling Law, § 4, subd. 11 for definition of 1 ‘ old-law tenement ’ ’ as one existing before April 12, 1901). The other case cited by the Appellate Division (Paretta) related to a different subject altogether, namely, whether a dressing room and adjoining master bedroom constituted one room or two. This had nothing to do with the present issue. None of the cases cited by the Appellate Division supports its determination. The cases cited by Special Term are more nearly in point (Matter of Kellogg [Weaver], N. Y. L. J., Dec. 6,1956, p. 6, col. 1; Matter of Rosin v. McGoldrick, 279 App. Div. 1080; Soubasis v. Finkelstein, 82 N. Y. S. 2d 465, and Geddes v. McGoldrick, N. Y. L. J., Feb. 2, 1953, p. 356, col. 2). In the first two, rulings by the Administrator were upheld that a space in an apartment 6 feet 6 inches by 11 feet and another 7 by 9 feet constituted a room In the third case cited an administrative ruling was reversed that a 4%-foot by 10%-foot space in a building was not a living room. In the last case cited a dressing room was held to be includable in the same nomenclature.

Although it may be true, as said by the Appellate Division, that words used in one statute are not necessarily given the same meaning or bound by the same limitations as words used in another statute, we conclude, as did Justice Schweitzer at Special Term, that what is meant by a room in regulation 57 is a legal room.”

This construction accords with the public policy intended to be promoted by the regulation in question, and results in a simple and workable rule. This is evidently an old, poorly designed tenement house which contains considerable waste space. The owner proposes to remodel these ancient six-room flats, each occupied by two people, into more modern three-room accommodations. The rents will he substantially less than those now being charged, and at least 16 of the tenants have apparently considered it to be to their advantage. Possibly the owner should not have aimed at doubling the number of apartments, but with that, at present, we are not concerned. The District Director and the Administrator have power, if the facts warrant, to require the owner to change its plans so as not to create any excessive number of new living units. There is something mistaken in ruling, however, that it is in the public interest to require these dilapidated, out of date structures to remain as they are on some theory that because a room may be thought to be too small to be called a room it should, therefore, not be enlarged. Unless the word “ room ” in regulation 57 be construed to mean ‘1 legal room ’ ’, it will put obstacles in the way of rehabilitating these old tenements where, as here, they are evidently under-occupied.

The order appealed from should be reversed and the judgment of Special Term reinstated, with costs in this court and in the Appellate Division.

Keating-, J. (dissenting).

I would affirm the order of the Appellate Division. The Administrator clearly has discretion in determining whether a particular space enclosed by three walls and a door is a room within the meaning of the regulations here at issue. An analysis of the policy sought to be furthered by the regulations compels such a conclusion.

In formulating a regulation which provides that renovation and subdivision should be permitted only where the apartment is six rooms or more and only where there is less than one occupant per room, the Administrator sought to balance the need for more and modern apartments against the necessary eviction of a tenant during a period of declared emergency. In so doing, the Administrator decided that only where an apartment is sufficiently large in size — six rooms —would the attendant benefit — two three-room apartments — outweigh the undesirable consequence of an eviction. Obviously then, the size of an area denominated as a room is crucial.

The fact that this room is considered a “ legal ” room is completely irrelevant. The Legislature, when specifying standards for rooms, excluded buildings constructed prior to 1900 out of consideration for the owners of those dwellings who might otherwise have boon compelled to rocon.stnicl,. Surely ibis special consideration should not be used to defeat the policy by which the Legislature has chosen to secure a sufficient number of apartments for the residents of New York City. Moreover, the very fact that the size of the room in question would not meet present day standards is indicative of the reasonableness of the Administrator’s determination.

The last paragraph of the majority opinion sets forth the real considerations motivating reversal. In essence, the majority has determined to substitute its own judgment for that of the Administrator, thus ignoring the fact that the Legislature delegated to her and not to this court the authority to determine the circumstances under which permits to remodel and subdivide would be granted.

The reasonableness of the regulation formulated by the Administrator is not challenged nor is the validity of the delegation of authority. Yet, without considering the purpose of the legislation in this area, this court has usurped the functions of an administrative agency.

From this action I must dissent.

Chief Judge Fuld and Judges Burke, Scilepfi and Breitel concur with Judge Van Voorhis; Judge Keating dissents and votes to affirm in an opinion in which Judge Bbegan concurs.

Order of Appellate Division reversed and judgment of Special Term reinstated, with costs in this court and in the Appellate Division.  