Majority
Application by a landlord under article 78 CPLR to set aside Rent Administrator’s order that a certain apartment in petitioner’s building is subject to rent control is denied. In 1965, respondent’s District Director fixed a maximum for the subject apartment, not taken higher by way of protest by the landlord. Instead, the landlord thereafter instituted a nonpayment dispossess proceeding, to which respondent was not a party, in Civil Court, asserting decontrol because of the landlord’s alleged occupancy for over a year occurring prior to occupancy by the then tenant. Petitioner prevailed. Thereafter, a later tenant complained to the District Director of excessive rent; petitioner was sustained by the District Director on the basis of prior owner occupancy pursuant to the Civil Court decision. The District Director’s decision was protested to respondent Administrator, who scheduled a hearing, at which petitioner refused to appear, relying upon the Civil Court judgment. Respondent reversed the District Director, holding the 1965 order still valid and unaffected by the proceedings — unilateral as far as respondent was concerned- — in Civil Court. The court agrees. At the time of the 1965 order, respondent had and still retains exclusive jurisdiction of the subject matter. That order was reviewable only pursuant to article 78, and the landlord may not sidestep the determination by the recourse had by him to Civil Court. The 1965 order stands. Petition dismissed.