BRUSCO v. ARMSTRONG (2001)

Order dated June 21, 2000 (Laurie L. Lau, J.) reversed with $10 costs, tenants' motion to set aside the order and judgment after trial is denied, and the final judgment of possession is reinstated.

In this owner use holdover proceeding for possession of rent stabilized apartment premises, Civil Court determined after trial that landlord sought in good faith to recover the premises for occupancy by his daughter.   Subsequently, the trial court set aside its decision and dismissed the petition on the ground that since tenants occupied two contiguous apartments as a single primary residence, and one of the two was an “ETPA protected apartment”, eviction was foreclosed under the so-called “20-year rule” precluding owner use proceedings against long-term tenants.

 Because we conclude that Civil Court misapprehended the governing regulatory framework, we reverse and reinstate the court's original order of possession.   The Emergency Tenant Protection Act of 1974 (EPTA) (L.1974, ch. 576) “is an enabling act which empowered New York City and certain local governments to impose, or, as in New York City, where it already existed, to extend rent stabilization” (LaGuardia v. Cavanaugh, 53 N.Y.2d 67, 74-75, 440 N.Y.S.2d 586, 423 N.E.2d 9).   Hence, by declaration of the New York City Council, rent stabilization coverage for housing accommodations within the City was extended to tenants in qualifying buildings who had entered into possession during the period of vacancy decontrol.   The Rent Stabilization Code, as originally promulgated and subsequently amended (see, New York City Administrative Code § 26-5 11[b]), contains no provision limiting the owner use remedy where the tenant has been in occupancy for 20 years or more (see, 9 NYCRR § 2524.4[a][2] ).   This limitation derives solely from chapter 234 of the Laws of 1984 which, as here relevant, afforded such protection only to rent controlled tenants (see, 9 NYCRR § 2204.5) and to tenants protected by the ETPA in cities having a population of less than one million (see, McKinney's Unconsolidated Laws § 8630[a]).   Notably, chapter 234 did not engraft the 20-year rule upon that part of the ETPA addressed to housing accommodations in cities having a population of one million or more.   In this regard, the operative language of the ETPA-which was not amended-merely states:

“For cities having a population of one million or more this act may be implemented by regulations adopted pursuant to the New York City rent stabilization law of 1969, as amended, or as otherwise provided by law” (see, McKinney's Unconsolidated Laws § 8630[b]).

As we have seen, no regulation implementing the 20 year rule has, in fact, been adopted under New York City rent stabilization.   Tenants' reliance upon § 2504.4(a)(2) of the Emergency Tenant Protection Regulations  is inapposite since “these regulations ․ apply to housing accommodations located in the counties of Nassau, Rockland and Westchester, which are subject to the Emergency Tenant Protection Act of 1974 ․” (ETPR § 2500.8).

When the Legislature has specified the cases to which its enactment shall apply, and has failed to specify other particular cases, it is fair to conclude that the exclusion was intended (McKinney's Cons. Laws of N.Y., Book 1, Statutes, § 74).   Thus, the absence from chapter 234 of any provision for rent stabilized or ETPA tenants within New York City provides a strong indication that this was not a matter of mere legislature oversight (see, Pajak v. Pajak, 56 N.Y.2d 394, 397, 452 N.Y.S.2d 381, 437 N.E.2d 1138).   In any event, “we may not rectify any perceived omission of such a provision by providing one by implication” (518 West 134th Street Tenants Association v. Calderon, 181 Misc.2d 216, 217, 694 N.Y.S.2d 890).

PER CURIAM.