Brown, Harris, Stevens, Inc. v. Abrams

Per Curiam. In an original proceeding* before the Bent Administrator, a determination was made that the premises were decontrolled. The tenant instituted an article 78 proceeding to review the determination. The landlords, although given the opportunity to intervene in that proceeding, elected not to do so but to leave the representation of their interest to the Bent Administrator. Special Term annulled the determination of the Bent Administrator, holding that the premises were not decontrolled, and remitted the matter to the Administrator to fix the rent. The Administrator appealed but abandoned the appeal, acquiesced in the decision at Special Term and fixed the rent for the premises. The landlords then instituted an article 78 proceeding to review the action of the Administrator taken in accordance with the direction of the court. Special Term dismissed the landlords ’ petition, holding that the matter had been concluded by the prior decision. The landlords appeal from that determination. The court below properly concluded that the issue between the parties had been adjudicated by the prior decision, as to which an appeal had been taken but was abandoned. The landlords claim before us, however, that they are not bound by the prior determination because they were not a party to that proceeding. They cite and rely upon the decision of this court in Matter of Milner v. Abrams (1 A D 2d 883), as authority for their right to be heard anew and to be relieved from that determination. The Milner case is quite distinguishable from the instant case. In that case the appellant, who had not originally intervened in an article 78 proceeding to review a determination of the Bent Administrator, subsequently sought to intervene at Special Term and to set aside the unfavorable order which had been entered by rearguing the issue upon the presentation of additional proof. Special Term granted the motion to intervene and took the new proof but adhered to its prior decision. Appellant then sought to appeal to this court from both the first and second orders of Special Term. This court held that appellant had no standing to appeal from the first order, but had standing by virtue of his intervention and presentation at Special Term to appeal from the second order. Upon that appeal this court remitted the matter to the Administrator for further consideration. In. the present proceeding the landlord neither sought nor obtained leave to intervene at Special Term. Instead, he seeks [378] by indirection to gain a review of the final order then entered by instituting a new article 78 proceeding from a determination of the Rent Administrator made in compliance with that order. This he may not do. The issue was concluded by the prior ruling from which no appeal was prosecuted. We therefore do not reach the substantive question sought to be tendered by this appeal. The order appealed from should be affirmed, with costs to respondents.