Baldwin v. Jih-Kuei Chang , 75 Misc. 2d 458 ( 1973 )

Per Curiam.

Section 2 (subd. f, par. [11]) of the Bent, Eviction and Behabilitation Begulations provides for decontrol of a housing accommodation where it has been owner-occupied for at least one year. The section is self-operative without further action by the Rent Commission (see State Rent Administrator’s Advisory Bulletin No. 1, par. 13). The requirement, that the landlord shall file a report with the Commissioner within 30 days following the date of first rental of such accommodations after decontrol, is a nonimperative requirement and it is only for statistical purposes. The failure to comply therewith does not penalize the landlord or vitiate an automatic decontrol of the housing accommodation when the preliminary requirements have been met. (Forbes v. Lomazow, 22 A D 2d 800.)

However, the landlord has not established on the inquest the preliminary requirements under section 2 (subd. f, par. [11]) that would show decontrol of the accommodation. The testimony showed only owner occupancy, without further particularization required by the section. 'Consequently, the final judgment awarding landlord possession cannot stand.

• The granting or denial of an application for decontrol by the Bent Commission would not affect the self-operating provision of- the regulation, even though in this case the Bent Commission has determined that the subject accommodation is decontrolled because of owner occupancy. There is no statute, rule or regulation that gives the Bent Commission jurisdiction to make such determination as a condition precedent to decontrol. Absent such jurisdiction, its order is a nullity.

Order reversed, with. $10 costs, motion granted, judgment vacated, and tenant is granted leave to answer, and a new trial is directed.