Sigety v. Leventhal

Kupferman, J. (dissenting in part).

The determination by the respondents finding petitioners guilty of harassment, at the same time dismissed the proceeding against the previous landlord Torregrosso on the ground that "the evidence offered * * * fails to establish intent on his part to violate Section Y51-10.0 of the City Rent Law.” The latter is the "harassment” ordinance. (See Matter of Felin Assoc. v Altman, 41 AD2d 825, affd without opn 34 NY2d 895.) Inasmuch as the situation with regard to the problems in these very old buildings resulted from serious prior neglect, the only conclusion that can be reached from the inconsistent determinations which find against the present landlord but dismiss against the former landlord, is that the presumption is invoked against the present landlord because he has made it clear that he intends to demolish the buildings. We are, therefore, in this quasi-criminal proceeding confronted with the validity of subdivision b of section 74 of the Rent, Eviction and Rehabilitation Regulations which raises the presumption. As the Court of Appeals has just recently stated: "A statutory presumption is a deduction or an inference which the trier of fact may draw from facts found or otherwise established during the course of the trial (see Tot v. United States, supra [319 U.S. 463]; People v. Cannon, 139 N.Y. 32, 43; People v. Hilderbrand, 308 N.Y. 397).” (People v Leyva, 38 NY2d 160, n 3.) When, however, as here, the determinations are in conflict solely because of the statutory presumption, it becomes a distinct question whether the classification was rational. (See Weinberger v Salfi, 422 US 749, 772; The Supreme Court, 1974 Term, 89 Harv L Rev 1, 77 on Irrebuttable Presumptions.) Under the circumstances, serious questions as to due process are raised (cf. Mullaney v Wilbur, 421 US 684), and the matter should be remanded to the respondents for further consideration.