Broadway & 67th Street Corp. v. Joy

Kupferman and Ross, JJ.,

dissent in part in a memorandum by Kupferman, J., as follows: I dissent on the opinion of Mr. Justice Wallach at Special Term. I would add that the majority of this Court abuses its discretion in reversing and remanding for the purpose of the rent commission interposing an answer to the petition. What is involved here is the question of a proper rental for an apartment in the Lincoln Square area, for which the rent commission has fixed a rental of $32.50 per month. In 1979, Mr. Justice Hughes directed the commissioner to conduct a comparability study and fix a maximum rental within 60 days. The time factor was ignored, and the direction for this comparability study virtually ignored. All that Mr. Justice Wallach did was substantially to direct compliance with the original order of Mr. Justice Hughes. To allow, at this late date, after so many proceedings both before the rent commission and in the court, the rent commission now to interpose an answer, seemingly on the basis that there is more that they can tell the court, is a gross abuse of discretion. The Court of Appeals has informed us that failure to comply with legitimate legal requirements is not to be countenanced. (Barasch v Micucci, 49 NY2d 594.) We need not take a draconian point of view to find that in this instance the rule suggested by the Court of Appeals should clearly apply.