Pennella v. Joy , 79 A.D.2d 606 ( 1980 )

In a proceeding pursuant to CPLR article 78 (commenced Feb. 7, 1977) to review a determination by the Commissioner of the New York City Department of Rent and Housing Maintenance denying petitioner’s application for a certificate of eviction, the appeal is from a judgment of the Supreme Court, Kings County, entered November 9, 1979, which, upon a memorandum decision dated May 23, 1977, granted the petition, annulled the determination, and directed that the commissioner issue a certificate of eviction within 60 days of the entry of the judgment. Judgment reversed, on the law, without costs or disbursements, determination confirmed and proceeding dismissed on the merits. The commissioner’s determination as to petitioner’s lack of “good faith” is supported by substantial evidence and had a reasonable basis. At the present time petitioner and her family are residing in a three-bedroom apartment in a house owned by her husband and her father, who also resides in the building. The apartment which petitioner is seeking is in a six-family house owned by petitioner and her husband. Since the filing of her application for a certificate of eviction, there have been five empty apartments in petitioner’s building. She refused to accept any of these, insisting upon the specific apartment in question. This action by the petitioner negated her allegation that she must move from her present apartment because there is a serious conflict between her husband and her father. Petitioner’s allegation that the tender age of her two children necessitates the apartment in question because of its proximity to the street level, has lost its significance. A period of more than five years has elapsed since the filing of the application. The children are presently 9 and 11 years old, respectively. Mollen, P. J., Titone, Lazer and Cohalan, JJ., concur.