(dissenting). I dissent and vote to reverse and grant the application. In my view this case can be distinguished from Matter of Mercantile Enterprises v. Weaver (3 Misc 2d 989, .affd. 3 A D 2d 932, affd. 4 N Y 2d 375). In that case the premises consisted of a store on the ground floor which paid a yearly rental of $11,000, without services, an apartment on the second floor which had been vacant for five years, and the subject apartment on the third floor. There were no violations on the building, nor was the landlord facing-possible criminal action; he merely wished to be rid of the housing tenant. The court found an absence of good faith, and in refusing to permit such partial withdrawal pointed out, “ The net result of withdrawing- the tenant’s apartment from the rental market would not be to relieve the landlord of an alleged undue hardship, but rather to add to the landlord’s already profitable return from the building.”
In the ease before us there is no question of the landlord-executor’s good faith. He has been convicted of misdemeanors and offenses by reasons of the violations and faces further possible criminal prosecution. The cost of removal of the violations is substantial, in one view approximating over one half of the assessed valuation of the houses, and in the other exceeding such valuation by approximately $10,000. The three stores on the ground floor of the premises yield approximately $1,485.60 above the present real estate taxes, much of which would probably be absorbed by other expenses. One store is on long-term lease. To require continuation of operation at the risk of criminal penalties, withdrawal at the risk of civil suit, or removal of the violations at prohibitive cost, seems to go beyond the legitimate scope of section 59 of the regulations. As construed a penalty is imposed for withdrawal, and risk of criminal liability for continued operation.
*675Botein, P. J., Yalente and Bergan, JJ., concur in Memorandum; Stevens, J., dissents and votes to reverse and annul.
Order, dated February 26, 1960 dismissing' petition affirmed, with $20 costs and disbursements to respondent, etc.