Sommer v. New York City Conciliation & Appeals Board

Asch, J. (dissenting).

I disagree with the majority and would reverse the judgment confirming the determination of the respondent Conciliation and Appeals Board on the ground that a corporation, here a foreign corporation, leasing an apartment in New York City is not protected by *487subdivision E of section 54 of the Code of the Rent Stabilization Association of New York City, Inc. (Rent Stabilization Code).

Chapter 373 of the Laws of 1971 amended subdivision 5 of section 1 of chapter 21 of the Laws of 1962 (Local Emergency Housing Rent Control Act) by adding the following inter alia: “no local law or ordinance shall subject to such regulation and control any housing accommodation which is not occupied by the tenant in possession as his primary residence”. Governor Rockefeller’s memorandum approving chapter 373 stated, inter alia: “Thousands of controlled apartments in New York City and elsewhere are rented by people who do not live in them. They use the apartments as a convenience, staying in them occasionally when they come to the City. Some even use them for storage. Continued controls on these apartments, indirectly subsidizing them through reduced real estate taxes, and keeping them off the market, is one of the worst inequities of rent control” (NY Legis Ann, 1971, p 562).

The implementing statute, the Code of the Rent Stabilization Association, provides in subdivision E of section 54: “The owner shall not be required to offer a renewal lease to a tenant only upon one of the following grounds * * * E * * * (1) The owner has established by facts and circumstances which in the judgment of the Conciliation and Appeals Board may have a bearing upon the question of residence, that the tenant in possession maintains his primary residence at some place other than at such housing accommodation. (2) In making such determination the Conciliation and Appeals Board shall give due consideration to any facts and circumstances establishing that the housing accommodation is not the tenant’s primary residence, including, but not limited to, the fact that such tenant (i) specified an address other than such housing accommodation as his place of residence in any tax return, motor vehicle registration, driver’s license or other document filed with a public agency, (ii) gives an address other than such housing accommodation as his voting address, or (iii) assigns and/or sublets such housing accommodation.”

The tenant and lessee of the apartment herein is Barn-well Industries, Inc. Barnwell is a foreign corporation *488chartered in Delaware with its principal place of business in Chattanooga, Tennessee. Voting records and filing of individual tax returns are stated in the Governor’s memorandum {supra) as indicia of primary residence. A foreign corporate lessee cannot provide these indicia of primary residence. Similarly, section 54 (subd E, par [2], cl [i]) of the Rent Stabilization Code enumerates various other indicia of primary residence, including motor vehicle registration, driver’s license or other documents filed with a public agency. These indicia also pertain to a natural person renting an apartment, not a foreign corporate lessee. As this court has previously stated in considering the applicability of subdivision E of section 54 to a tenant-lessee which was a foreign mission to the United Nations: “Obviously, for this tenant there cannot be any tax returns or voting residence, which the Governor indicated in his message and as set forth in the Code * * * the Rent Stabilization Law and the Code, as amended, are not designed for the protection of such organizations” (Matter of Walter & Samuels v New York City Conciliation & Appeals Bd., 81 AD2d 212, 215, app dsmd 55 NY2d 824).

I doubt that any corporation can maintain a “residence” as that term is used in the housing laws. Even assuming that one could, it most certainly would not be true of the tenant herein which is a foreign corporation with its principal place of business in Tennessee.

Analogy can be drawn between subdivision E of section 54 herein and subdivision B of section 54 of the Rent Stabilization Code and subdivision a of section 55 of the New York City Rent and Eviction Regulations, all of which deal with the recovery by landlords of housing accommodations for their own personal use. All of these latter sections have been held to exclude corporate landlords (see Matter of Colin v Altman, 39 AD2d 200; Henrock Realty Corp. v Tuck, 52 AD2d 871). As this court noted: “A corporation has no compelling necessity to occupy housing accommodations, nor does it have a family, immediate or otherwise” (Matter of Colin v Altman, supra, at p 202). Where the application of a statute or its interpretation involve understanding of operational practices or an evaluation of factual data and inferences to be drawn therefrom, *489the courts regularly defer to the agency charged with the administration of the statute. Where the issue is one of pure statutory reading and analysis, however, the interpretive regulations of the agency are to be accorded much less weight (Matter of Howard v Wyman, 28 NY2d 434).

The plain language of the statute and the implementing code plus the express mandate of the statute as expressed in the Governor’s memorandum are contravened by the extension of the protection of subdivision E of section 54 to a corporation and a fortiori a foreign corporation. (See Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 57 NY2d 588, 596-597.)

If I were not reversing on the above ground, I would reverse on the alternate ground that the protection of this section should not be extended to an occupant who admittedly did not pay any New York State or New York City income tax during at least part of the period herein. The occupant, Morton H. Kinzler, who is the president and chief executive officer of Barnwell Industries, was considered by Special Term to be the “tenant in possession” (115 Misc 2d 820, 822). However, Mr. Kinzler did not sign any lease and at best can be considered a mere licensee. Barn-well was the lessee herein and the only landlord-tenant relationship created by the lease was between it and the petitioner-landlord.

Pursuant to the Tax Law, a resident tax return is required to be filed by an individual who is domiciled in this State when he or she spends at least 30 days at his. apartment in New York. A resident tax return is required to be filed by one not a domiciliary of this State but who maintains a permanent residence and spends more than 183 days of the taxable year in New York (Tax Law, § 605). In the tenant’s answer to the Conciliation and Appeals Board application of the landlord, dated June 2, 1980, the tenant Barnwell Industries, Inc., asserted that “Mr. Kinzler spent well over 250 nights in the subject apartment in New York during [the last twelve months]”. In Conciliation and Appeals Board Order and Opinion No. 15,728, it is stated that Mr. Kinzler was not liable for State and city taxes for calendar year 1979 because of several factors, one of which was extensive travel by him outside of New York *490State in 1979. It is obvious that either this apartment was not Mr. Kinzler’s primary residence or that some form of tax fraud or evasion took place.

The courts should strain to avoid placing any intimation of illegality upon the actions of a party in a civil proceeding. I would therefore deem Mr. Kinzler’s nonpayment of State and city taxes for all or part of the pertinent period a conclusive presumption of his nonresident status. This would comport with the public policy of this State — to make housing available at reasonable rents to residents — as shown by the legislative history, supra.

Accordingly, the judgment of the Supreme Court, New York County (Fraiman, J.), entered December 9, 1982, should be reversed, on the law and facts, without costs, and the matter remanded to the respondent Conciliation and Appeals Board to issue an order holding that the subject premises are not the primary residence of the tenant Barnwell Industries, Inc.

Ross, J. P., Fein and Alexander, JJ., concur with Bloom, J.; Asch, J., dissents in an opinion.

Judgment, Supreme Court, New York County, entered on December 9, 1982, affirmed, without costs and without disbursements.