Opinion
Argued February 4, 1965
Decided April 22, 1965
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, HYMAN KORN, J.
Jack Newton Lerner for appellant.
Florence R. Zimmerman and Beatrice Shainswit for respondent.
MEMORANDUM: The order of the Appellate Division should be reversed, the order of Special Term reinstated and the proceeding remanded to the Administrator for the purpose of determining the matter in accordance with the State rent control statute and State Administrator's Regulations in effect prior to June 30, 1961, with costs in this court and in the Appellate Division. (See Matter of Schreiber v. McGoldrick, 283 App. Div. 779, affd. 307 N.Y. 650; Levy v. 1165 Park Ave. Corp., 305 N.Y. 607; Matter of Neulist v. Weaver, 2 A.D.2d 530, affd. 2 N.Y.2d 889; Matter of Garden Bay Manor [ Sills] v. Herman [ Gaynor], N.Y.L.J., June 21, 1962, p. 11, col. 1 [Spec. Term, N Y County, MARKOWITZ, J.], affd. 23 A.D.2d 537, mot. for lv. to app. den. 15 N.Y.2d 486; 850 Corp. v. Schwartz, 15 N.Y.2d 899; Matter of East 19th St. Co. v. Gabel, 39 Misc.2d 218, affd. 19 A.D.2d 590, mot. for lv. to app. den. 13 N.Y.2d 595.) The respondent must hear the testimony of the petitioner's experts and evidence of listings and sales of comparable property in order to complete the record. (See Matter of R. S. Realty Co. v. Herman, 16 A.D.2d 954, affd. 13 N.Y.2d 679.)
See, also, Matter of Shafer v. Gabel ( 16 N.Y.2d 513) and Matter of Rotham Realty Co. v. Gabel ( 16 N.Y.2d 517), both decided herewith. Protest proceedings and court remit proceedings may not be treated as "pending applications".
The cases cited in the court's memorandum are not controlling on the question raised on this appeal and, for the reasons stated in the dissent in Matter of Rotham Realty Co. v. Gabel ( 16 N.Y.2d 517, 520) decided herewith, the order should be affirmed.
Judges FULD, VAN VOORHIS, BURKE and SCILEPPI concur in MEMORANDUM; Judge BERGAN dissents and votes to affirm in an opinion in which Chief Judge DESMOND and Judge DYE concur.
Order of the Appellate Division reversed and that of Special Term reinstated and the proceeding remitted to the Administrator for further proceedings in accordance with the memorandum herein, with costs in this court and in the Appellate Division.