Breger v. Macree

42 A.D.2d 533 | N.Y. App. Div. | 1973

Determination of respondent Commissioner, dated March 28,1972, that the landlord was guilty of harassment and revoking a certificate of eviction, unanimously annulled, on the law, without costs and without disbursements, and the certificate of eviction is reinstated. In annulling the determination by the Commissioner, we note, as we have heretofore, in similar situations, “that the proceeding was improperly transferred by Special Term to thi^ceurt. Section Y51-9.0 (subd. a, par. [1]; subd. b) of the Administrative Code provides that an article 78 proceeding brought to review a final determination of a city rental agency be commenced in the Supreme Court, and that that court is given jurisdiction to set aside such order, in whole or in part, if it be established to the satisfaction of that court that the order is not in accordance with law, or is arbitrary or capricious. Provision is also therein made for review on appeal from any judgment of the Supreme Court. Hence, Special Term should have determined the matter on the merits. However, even if a proceeding- is improperly transferred to this court, the court has the power to dispose of the issues (Matter of 125 Bar Gorp. V. State Liq. Aufh., 24 N Y 2d 174, 180; Matter of Willow Garden Apts. v. Biker, 36 A D 2d 892; Matter of TPasani v. Bappaport, 30 A D 2d 588).” (Matter of Salebe v. Altman, 41 A D 2d 908.) Accordingly) we have considered the petition on the merits. The harassment alleged, if any, was in a technical sense only in that it was difficult, if not impossible, to maintain the premises in a normal manner. There was only one tenant in the whole building, and the short circuit, which caused the boiler room fire, which made it difficult to provide hot water, could not reasonably have been prevented. Concur — Markewich, J. P., Nunez, Kupferman, Steuer and Tilzer, JJ.