Rosin v. McGoldrick

In a proceeding pursuant to article 78 of the Civil Practice Act, order denying appellant’s petition (1) to review the determination of the State Rent Administrator authorizing the subdivision of an apartment occupied by petitioner, or (2) in the alternative to remit the proceeding to the State Rent Administrator to permit the introduction of new evidence, and dismissing the proceedings, and the determination of the State Rent Administrator, reversed on the law and the facts, without costs, and the matter remitted to respondent administrator to receive and consider any new evidence which may be offered and which is material on the question of whether appellant’s apa'rtment is under-occupied within the purview of section 57 of the State Rent and Eviction Regulations. In our opinion, the administrator’s determination that the accommodations offered appellant were adequate is now supported by substantial evidence (ef. Matter of Rosin v. McGoldrick, 279 App. Div. 1080) and may not be disturbed by the courts. However, the matter should be remitted for the receipt of evidence on the question of whether, subsequent to the administrator’s original determination, there was an increase in the number of members of appellant’s family and whether the apartment was under-occupied under section 57 of the regulations. That question should be considered and determined by the administrator de novo; but the issues already tried respecting the adequacy of the proposed accommodations should not be relitigated. (Cf. Matter of Heller v. McGoldrick, 278 App. Div. 53; State Residential Rent Law, § 9, subd. 1.) Nolan, P. J., Johnston, Adel, Wenzel and MacCrate, JJ., concur.