Opinion
June 7, 1949.
Martin B. Nadle for landlord.
Louis Horwitz for tenant.
The court's attention has not been attracted to any case which is determinative of the question involved herein, nor has the court been able to find any precedent after an exhaustive research.
In Joanette Juniors v. Princeway Realty Corp. ( 272 A.D. 420) and in Arlow v. Imperial Crown Toy Corp. ( 194 Misc. 541 [App. Term, 2d Dept., March, 1949, Term]) it was held that where a tenant occupied space which was a part of a larger single unit which was occupied on the freeze date, said lesser space is considered occupied as of the freeze date and the parties could not fix the emergency rent on a comparable basis by agreement, but must proceed in the Supreme Court to fix reasonable rent. I feel, however, that said cases are not controlling because I find that the stairway space was not used on June 1, 1944, for business purposes, and that the demised space is not part of a single unit which was used on said June 1, 1944, but is made up of parts of several units, and includes a new unit as well, namely, the stairway space, and that by reason thereof, the space demised is entirely new, and, viewing same from an over-all perspective, the original spaces, which some of the demised parts comprised, have lost their identity. Hence the parties could fix emergency rent by agreement. (See, also, Lang v. Resiberg, 186 Misc. 868.) Final order for landlord.