
    In the Matter of Consolidated Rail Corporation, Appellant, v Charles A. Zielinski et al., Constituting the Public Service Commission of the State of New York, Respondents.
   Appeal from a judgment of the Supreme Court at Special Term, entered December 22, 1978 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, seeking to annul an order issued by the Public Service Commission on July 11, 1978. We affirm on the opinion of Mr. Justice Cholakis at Special Term. In so ruling, we would only add that in this proceeding attacking solely the order of July 11, 1978 petitioner improperly seeks to litigate the question of whether or not the subject rate increase was discriminatory in violation of subdivision 2 of section 65 of the Public Service Law. While such a charge of discrimination might well state a cause of action in a proceeding challenging the commission’s approval of the rate increase in its order of May 22, 1978, it is most significant that petitioner never instituted such a proceeding after its request for a rehearing on the order of May 22, 1978 was denied, even though Special Term indicated that such a course was the appropriate one to follow so that the issue of alleged discrimination could be addressed. Having thus failed to commence the suggested proceeding which is now time barred, petitioner cannot rightly complain when its attempted interjection of the discrimination issue into the present proceeding wherein it is not at issue is disallowed. Judgment affirmed, with costs. Mahoney, P. J., Greenblott, Kane, Main and Herlihy, JJ., concur.  