Wittlin v. Rent Control Div. ( 89 A.D.2d 603, affd for reasons stated at App. Div. 58 N.Y.2d 723) indicates the proper outcome of the case before us. In Wittlin a residential apartment had become eligible for decontrol when it was occupied by the owner, but the latter had failed to file a report of such decontrol with the appropriate administrative agency.
There was a rational basis for the commissioner's determination that petitioner failed to carry its burden of showing continuous owner occupancy for a one-year period. The dissent's citation to Wittlin v. Rent Control Div., Dept. of Housing Preservation Dev. of City of N.Y. ( 89 A.D.2d 603, affd 58 N.Y.2d 723), is inapposite because there was no question there of the fact of owner occupancy, but only the validity of the "report of decontrol," (untimely filed) and the effect of a prior decontrol of another apartment. Concur — Carro, Silverman, Fein and Kassal, JJ.